Case Digest: Samonte et al. v. La Salle Greenhills, Inc. G.R. No.

The Labor Arbiter dismissed the complaint and ruled that the
199683 February 10, 2016 petitioners were independent contractors but on the ground of
compassionate social justice, awarded separation pay. Both parties
PEREZ, J.:
appealed the decision to the NLRC. The NLRC disagreed with the
Facts: appealed decision, finding petitioners as fixed term employees
according to the Contract of Retainer signed by the parties. In a
Petitioners are medical professional hired by LSGI under a uniform petition for certiorari, the court of appeals affirmed the NLRC
one-page Contract of Retainer for the period of a specific academic decision.
calendar beginning in June of 1989 and the succeeding 15 years and
terminating in March of the following year when the school year Issue:
ends. The contract specifically provides that the retainer is only
Whether or not petitioners were regular employees who may only be
temporary in character and exclusively limited to the undertaking
dismissed for just and authorized causes.
and/or to the job/task assigned to the retainer within the said
undertaking. Furthermore, at any time prior to the expiration or Ruling:
completion date/s, LSGI may upon written notice to the retainers,
The petitioners attained retained regular employment.
terminate the contract should the retainer fail in anyway to perform
his assigned job or task to the satisfaction of the school of for any just A fixed-term employment is allowable under the Labor Code wherein
cause. the parties agree upon the day certain for the commencement and
termination of their employment relationship. A day certain being
Accordingly, after 15 consecutive years of renewal each academic
understood to be "that which must necessarily come, although it may
year, on the last day of the 15th year in 2004, the school (LSGI)
not be known when. Furthermore, the term must be voluntarily and
informed the petitioner that their contracts will no longer be renewed
knowingly entered into by the parties who must have dealt with each
for the following school year.
other on equal terms not one exercising moral dominance over the
When petitioners’ requests for payment of their separation pay were other.
denied, they filed a complaint for illegal dismissal with prayer for
Further, a fixed-term contract is an employment contract, the
separation pay, damages and attorneys’ fees. They alleged that they
repeated renewals of which make for a regular employment. In Fuji
were regular employees because received regular benefits, bonuses &
Network Television v. Espiritu, the court noted that Fuji's argument
more, that they were subjected to the school’s administrative and
that Espiritu was an independent contractor under a fixed-term
disciplinary rules and regulations.
contract is contradictory where employees under fixed-term
On the other hand, LSGI posited that petitioners were independent contracts cannot be independent contractors because in fixed-term
contractors retained by LSGI by reason of their medical skills and contracts, an employer-employee relationship exists.
expertise to provide ancillary medical and dental services to both
The uniform one-page Contracts of Retainer signed by petitioners
students and faculty. More importantly, petitioners were paid
were prepared by LSGI alone. Petitioners, medical professionals as
retainer fees and not regular salaries and whose performance is not
they were, were still not on equal footing with LSGI as they obviously
subject to the control of the school.
did not want to lose their jobs that they had stayed in for fifteen (15)
years. There is no specificity in the contracts regarding terms and
conditions of employment that would indicate that petitioners and
LSGI were on equal footing in negotiating it. Notably, without
specifying what are the tasks assigned to petitioners, LSGI "may upon
prior written notice to the retainer, terminate [the] contract should
the retainer fail in any way to perform his assigned job/task to the
satisfaction of La Salle Greenhills, Inc. or for any other just cause."
In all, given the following: (1) repeated renewal of petitioners'
contract for fifteen years, interrupted only by the close of the school
year; (2) the necessity of the work performed by petitioners as school
physicians and dentists; and (3) the existence of LSGI's power of
control over the means and method pursued by petitioners in the
performance of their job, we rule that petitioners attained regular
employment, entitled to security of tenure who could only be
dismissed for just and authorized causes. Consequently, petitioners
were illegally dismissed and are entitled to the twin remedies of
payment of separation pay and full back wages.
Aliviado vs. Procter and Gamble a job, work or service for a principal and any of the following
elements are present:
G.R. No. 160506 June 6, 2011
1. i) The contractor or subcontractor does not have
Facts:
substantial capital or investment which relates to the job,
Petitioners worked as merchandisers of P&G. They all individually work or service to be performed andthe employees
signed employment contracts with either Promm-Gem or SAPS. They recruited, supplied or placed by such contractor or
were assigned at different outlets, supermarkets and stores where subcontractor are performing activities which are directly
they handled all the products of P&G. They received their wages from related to the main business of the principal; or
Promm-Gem or SAPS.
1. ii) The contractor does not exercise the right to control
SAPS and Promm-Gem imposed disciplinary measures on erring over the performance of the work of the contractual
merchandisers for reasons such as habitual absenteeism, dishonesty
Under the circumstances, Promm-Gem cannot be considered as a
or changing day-off without prior notice.
labor-only contractor. We find that it is a legitimate independent
To enhance consumer awareness and acceptance of the products, contractor.
P&G entered into contracts with Promm-Gem and SAPS for the
Considering that SAPS has no substantial capital or investment and
promotion and merchandising of its products.
the workers it recruited are performing activities which are directly
In December 1991, petitioners filed a complaint against P&G for related to the principal business of P&G, we find that the former is
regularization, service incentive leave pay and other benefits with engaged in “labor-only contracting”.
damages.
Where labor-only contracting exists, the Labor Code itself establishes
Issue: WON P&G is the employer of petitioners. an employer-employee relationship between the employer and the
employees of the labor-only contractor. The statute establishes this
Held: relationship for a comprehensive purpose: to prevent a circumvention
In order to resolve the issue of whether P&G is the employer of of labor laws. The contractor is considered merely an agent of the
petitioners, it is necessary to first determine whether Promm-Gem principal employer and the latter is responsible to the employees of
and SAPS are labor-only contractors or legitimate job contractors the labor-only contractor as if such employees had been directly
employed by the principal employer.
.Clearly, the law and its implementing rules allow contracting
arrangements for the performance of specific jobs, works or services. Petition Granted
However, in order for such outsourcing to be valid, it must be made NOTE:
to an independent contractor because the current labor rules
expressly prohibit labor-only contracting. 1. Respondent filed MR, which was denied.

To emphasize, there is labor-only contracting when the contractor or 2. In its resolution, the Court upheld its decision declaring
sub-contractor merely recruits, supplies or places workers to perform SAPS has no substantial capital, therefore, labor-only
contracto
SMART COMMUNICATIONS, INC. vs. ASTORGA G.R. No. 148132 Astorga, however, failed and refused to do either, thus prompting
January 28, 2008 SMART to file a suit for replevin before the RTC which was
subsequently denied.
Redundancy, authorised causes for dismissal, Article 283, One month
Notice, Backwages Astorga elevated the denial of her motion via certiorari to the CA,
JULY 5, 2018 which, in its February 28, 2000 Decision,19 reversed the RTC ruling.
Granting the petition and, consequently, dismissing the replevin case,
FACTS: the CA held that the case is intertwined with Astorga’s complaint for
illegal dismissal; thus, it is the labor tribunal that has rightful
Astorga was employed by Smart as District Sales Manager of the jurisdiction over the complaint. SMART’s motion for reconsideration
Corporate Sales Marketing Group/ Fixed Services Division. SMART having been denied.
launched an organizational realignment to achieve more efficient
operations. Part of the reorganization was the outsourcing of the On the other hand, the labor arbiter held that Astorga’s dismissal
marketing and sales force. Thus, SMART formed SMART-NTT from employment illegal. While recognizing SMART’s right to abolish
Multimedia, Incorporated (SNMI). Since SNMI was formed to do the any of its departments, the Labor Arbiter held that such right should
sales and marketing work, SMART abolished the CSMG/FSD, Astorga’s be exercised in good faith and for causes beyond its control. The
division. Arbiter found the abolition of CSMG done neither in good faith nor
SNMI agreed to absorb the CSMG personnel who would be for causes beyond the control of SMART, but a ploy to terminate
recommended by SMART. Astorga landed last in the performance Astorga’s employment. The Arbiter also ruled that contracting out the
evaluation, thus, she was not recommended by SMART. SMART, functions performed by Astorga to an in-house agency like SNMI was
nonetheless, offered her a supervisory position in the Customer Care illegal.
Department, but she refused the offer because the position carried
lower salary rank and rate. SMART also appealed the unfavorable ruling of the Labor Arbiter in
the illegal dismissal case to the NLRC which declared the abolition of
Astorga continued reporting for work. SMART issued a memorandum CSMG and the creation of SNMI to do the sales and marketing
advising Astorga of the termination of her employment on ground of services for SMART a valid organizational action.
redundancy,
ISSUE:
Astorga filed a Complaint for illegal dismissal, non-payment of salaries
and other benefits with prayer for moral and exemplary damages Whether or not Astorga’s dismissal was valid.
against SMART.
RULING:
In the meantime, SMART sent a letter to Astorga demanding that she
pay the current market value of the Honda Civic Sedan which was Astorga was terminated due to redundancy, which is one of the
given to her under the company’s car plan program, or to surrender authorized causes for the dismissal of an employee. The nature of
the same to the company for proper disposition. redundancy as an authorized cause for dismissal is explained in the
leading case of Wiltshire File Co., Inc. v. National Labor Relations Astorga’s actual knowledge of the reorganization cannot replace the
Commission, viz: formal and written notice required by the law. In the written notice,
the employees are informed of the specific date of the termination, at
x x x redundancy in an employer’s personnel force necessarily or even least a month prior to the effectivity of such termination, to give them
ordinarily refers to duplication of work. That no other person was sufficient time to find other suitable employment or to make
holding the same position that private respondent held prior to whatever arrangements are needed to cushion the impact of
termination of his services does not show that his position had not termination.
become redundant. Indeed, in any well organized business enterprise,
it would be surprising to find duplication of work and two (2) or more Smart gave her a formal notice of termination barely two (2) weeks
people doing the work of one person. before the effective date of termination, a period very much shorter
than that required by law.
We believe that redundancy, for purposes of the Labor Code, exists
where the services of an employee are in excess of what is reasonably This procedural infirmity, however, would not render the termination
demanded by the actual requirements of the enterprise. Succinctly of Astorga’s employment illegal. The validity of termination can exist
put, a position is redundant where it is superfluous, and superfluity of independently of the procedural infirmity of the dismissal.
a position or positions may be the outcome of a number of factors,
such as overhiring of workers, decreased volume of business, or In DAP Corporation v. CA, the dismissal of the employees therein valid
dropping of a particular product line or service activity previously and for authorized cause even if the employer failed to comply with
manufactured or undertaken by the enterprise. the notice requirement under Article 283 of the Labor Code.

However, as aptly found by the CA, SMART failed to comply with the The Court found the need to modify, by increasing, the indemnity
mandated one month notice prior to termination. awarded by the CA to Astorga, as a sanction on SMART for non-
compliance with the one-month mandatory notice requirement, in
Article 283 of the Labor Code clearly provides: light of our ruling in Jaka Food Processing Corporation v. Pacot, viz.:
Art. 283. Closure of establishment and reduction of personnel. — The
employer may also terminate the employment of any employee due [I]f the dismissal is based on a just cause under Article 282 but the
to the installation of labor saving devices, redundancy, retrenchment employer failed to comply with the notice requirement, the sanction
to prevent losses or the closing or cessation of operation of the to be imposed upon him should be tempered because the dismissal
establishment or undertaking unless the closing is for the purpose of process was, in effect, initiated by an act imputable to the employee,
circumventing the provisions of this Title, by serving a written notice and (2) if the dismissal is based on an authorized cause under Article
on the workers and the Ministry of Labor and Employment at least 283 but the employer failed to comply with the notice requirement,
one (1) month before the intended date thereof x x x. the sanction should be stiffer because the dismissal process was
initiated by the employer’s exercise of his management prerogative.
SMART’s assertion that Astorga cannot complain of lack of notice
because the organizational realignment was made known to all the The award of backwages to Astorga by the CA should be deleted for
employees as early as February 1998 fails to persuade. lack of basis. Backwages is a relief given to an illegally dismissed
employee. Thus, before backwages may be granted, there must be a
finding of unjust or illegal dismissal from work.The Labor Arbiter ruled
that Astorga was illegally dismissed. But on appeal, the NLRC reversed
the Labor Arbiter’s ruling and categorically declared Astorga’s
dismissal valid. This ruling was affirmed by the CA in its assailed
Decision. Since Astorga’s dismissal is for an authorized cause, she is
not entitled to backwages.
Rowell Industrial Corporation vs CA the Christmas season and to build up stock levels for the early part of
Facts: the year.
Rowell Industrial is engaged in manufacturing tin cans for use in
packaging of consumer products, e.g., foods, paints, among other Standards for valid fixed term employment:
things. Taripe was employed by petitioner on November 8, 1999 as a (1) the fixed period of employment was knowingly and voluntarily
“rectangular power press machine operator” Taripe alleged that upon agreed upon by the parties, without any force, duress or improper
employment, he was made to sign a document, which was not pressure being brought to bear upon the employee and absent any
explained to him but which was made a condition for him to be taken other circumstances vitiating his consent; or
in and for which he was not furnished a copy.
(2) it satisfactorily appears that the employer and employee dealt
Issue: with each other on more or less equal terms with no moral
Whether respondent was a regular employee dominance whatever being exercised by the former on the latter.

Held:
Under Art 280 regular employees are classified into: Application of these standards to this case:
(1) regular employees by nature of work - those employees who 1) The employment contract signed by respondent Taripe did not
perform a particular activity which is necessary or desirable in the mention that he was hired only for a specific undertaking, the
usual business or trade of the employer, regardless of their length of completion of which had been determined at the time of his
service; engagement. The said employment contract neither mentioned that
(2) regular employees by years of service - those employees who respondent Taripe’s services were seasonal in nature and that his
have been performing the job, regardless of the nature thereof, for at employment was only for the duration of the Christmas season as
least a year. purposely claimed by petitioner RIC. What was stipulated in the said
contract was that Taripe’s employment was contractual for the period
Article 280 of the Labor Code, as amended, however, does not of five months.
proscribe or prohibit an employment contract with a fixed period. It 2) Also RIC failed to controvert the claim that Taripe was made to sign
does not necessarily follow that where the duties of the employee the contract of employment, prepared by RIC, as a condition for his
consist of activities usually necessary or desirable in the usual hiring. Such contract in which the terms are prepared by only one
business of the employer, the parties are forbidden from agreeing on party and the other party merely affixes his signature signifying his
a period of time for the performance of such activities. There is adhesion thereto is called contract of adhesion.It is an agreement in
nothing essentially contradictory between a definite period of which the parties bargaining are not on equal footing, the weaker
employment and the nature of the employee’s duties. party’s participation being reduced to the alternative “to take it or
leave it.” In the present case, respondent Taripe, in need of a job, was
 In the case at bar, Taripe signed a contract of employment good only compelled to agree to the contract, including the five-month period
for a period of five months unless the said contract is renewed by of employment, just so he could be hired.
mutual consent. Along with other contractual employees, he was 3) 2) As a power press operator, a rank and file employee, he can
hired only to meet the increase in demand for packaging materials for hardly be on equal terms with petitioner RIC. As the Court of Appeals
said, “almost always, employees agree to any terms of an
employment contract just to get employed considering that it is
difficult to find work given their ordinary qualifications.” He was a
regular employee As a rectangular power press machine operator, in
charge of manufacturing covers for “four liters rectangular tin cans,”
was holding a position which is necessary and desirable in the usual
business or trade of petitioner RIC, which was the manufacture of tin
cans.Thus, he was a regular employee.
The Peninsula Manila v. Alipio G.R. No. 167310 | June 17, 2008| J. copies. This response peeved Santos for she was allegedly not entitled
Quisumbing to get copies of herpayslip vouchers. Santos thereafter directed Alipio
not to report for work anymore, as a consequence of which the
Doctrine: An employment is deemed regular when the latterfiled a complaint for illegal dismissal.
activities performed by the employee are usually necessary
ordesirable in the usual business of the employer. However, any Labor Arbiter: Dismissed the complaint for lack of merit but directed
employee who has rendered at least 1 year of service, even though Manila Pen to pay separation pay for having servedas a reliever nurse
intermittent, is deemed regular with respect to the activity performed for a long time.
and while such activity actually exists
NLRC: Affirmed with the modification of deleting the award of
Petitioners: The Peninsula Manila, Rolf Pfisterer (General Manager) & separation pay.
Benilda Quevedo-Santos (HR Manager)
CA: Reversed. Ordered to:oreinstate Alipio as regular staff nurse
Respondent:Elaine Alipio without loss of seniority rights;opay her full backwages and all the
benefits under the Labor Code from December 12, 1994 up to the
FACTS: time of heractual reinstatementomoral damages, exemplary
damages, and attorney's fees equivalent to 10% of the total monetary
The Peninsula Manila (Manila Pen) operates a clinic 24 hours a day award
and employs 3 regular nurses who work 8 hours eachday on 3
separate shifts. It also engages the services of reliever nurses who ISSUE: WON Alipio was illegally dismissed. (my own words) – YES.
substitute for the regular nurses who areeither off-duty or absent.
RATIO:
Alipio was hired as a reliever nurse. However, she had been
performing the usual tasks and functions of a regular nursesince the The conclusions reached by the NLRC and the Labor Arbiter, that
start of her employment on Dec. 11, 1993. Hence, after about 4 years, Alipio was not a regular employee of the hotel and thatshe was validly
she inquired why she was not receivingher 13th month pay. dismissed, are not supported by law and evidence on record.

Manila Pen then required her to submit a summary of her tour of Under Art. 280 of LC, an employment is deemed regular when the
duty for 1997. After submitting, she was paid her 13thmonth pay for activities performed by the employee are usuallynecessary or
1997. Alipio also requested for the payment of her 13th month pay desirable in the usual business of the employer. However, any
for 1993 to 1996, but her request wasdenied. employee who has rendered at least 1 year ofservice, even though
intermittent, is deemed regular with respect to the activity performed
In 1998, Alipio was informed by a fellow nurse that she can only and while such activity actuallyexists.oIn the case at bar, Alipio's
report for work after meeting up with the HR ManagerQuevedo- services were engaged by the hotel intermittently from 1993 up to
Santos. When asked regarding her payslip vouchers, she told her that 1998. Her services as areliever nurse were undoubtedly
she made copies of them becauseManila Pen does not give her necessary and desirable in the hotel's business of providing
comfortableaccommodation to its guests. In any case, since she had
rendered more than 1 year of intermittent service, she hadbecome a
regular employee as early as December 12, 1994. Lastly, per the
hotel's own Certification dated April 22,1997, she was already a
"regular staff nurse" until her dismissal.

Being a regular employee, Alipio enjoys security of tenure. Her

services may be terminated only upon compliance with
thesubstantive and procedural requisites for a valid dismissal: (1) the
dismissal must be for any of the causes provided in Art.282 of LC, and
(2) the employee must be given an opportunity to be heard and to
defend himself.

In the case at bar, Alipio was illegally dismissed because Manila Pen
failed to comply with the twin requisites for a valid termination.1)The
dismissal was not based on a just cause - Misconduct is any forbidden
act or dereliction of duty. Alipio's act of obtaining copies of her
payslips cannot be characterized as misconduct, much less a grave
misconduct. On the contrary, it is absurd that she had to resort to her
own resourcefulness to get hold of these documents since itwas
incumbent upon Manila Pen, as her employer, to give her copies of
her payslips.2)She was deprived of procedural due process - When
Santos had a meeting with Alipio, she was not informed that the hotel
was contemplating her dismissal. Neither was she informed of the
ground for which her dismissalwas sought. She was simply told right
there and then that she was already dismissed, thereby affording
noopportunity for her to be heard and defend herself.
Pier 8 Arrastre and Stevedoring Services Inc. vs. Boclot [G.R. No. the CBA, he qualifies as a regular employee The Supreme Court still
173849. Sept. 28, 2007] finds respondent to be a regular employee on the basis of pertinent
provisions under the CBA between PASSI and its Workers’ union,
Facts: Boclot was hired by PASSI to perform the functions of a wherein it was stated that it agrees to convert to regular status all
stevedore. Later on, Boclot filed Complaint with the Labor Arbiter incumbent probationary or casual employees and workers in the
claiming regularization; payment of service incentive leave and 13th Company who have served the Company for an accumulated service
month pays; moral, exemplary and actual damages; and attorney’s term of employment of not less than six (6) months from his original
fees. He alleged that he was hired by PASSI in October 1999 and was date of hiring. Respondent assents that he is not a member of the
issued company ID No. 304, a PPA Pass and SSS documents. In fact, union, as he was not recognized by PASSI as its regular employee, but
respondent contended that he became a regular employee by April this Court notes that PASSI adopts a union-shop agreement, culling
2000, since it was his sixth continuous month in service in PASSI’s from Page 2 Article II of its CBA. Under a union-shop agreement,
regular course of business. He argued on the basis of Articles 280 and although nonmembers may be hired, an employee is required to
281 of the Labor Code. He maintains that under paragraph 2 of Article become a union member after a certain period, in order to retain
280, he should be deemed a regular employee having rendered at employment. This requirement applies to present and future
least one year of service with the company. employees.

Issue: Whether or not hehas attained regular status The same article of the CBA stipulates that employment in PASSI
cannot be obtained without prior membership in the union. Hence,
Held: Yes. Though usual and necessary, his employment is dependent applying the foregoing provisions of the CBA, respondent should be
on availability of work SC took judicial notice that it is an industry considered a regular employee after six months of accumulated
practice in port services to hire “reliever” stevedores in order to service. Having rendered 228.5 days, or eight months of service to
ensure smooth-flowing 24-hour stevedoring and arrastre operations petitioners since 1999, then respondent is entitled to regularization
in the port area. No doubt, serving as a stevedore, respondent by virtue of the said CBA provisions
performs tasks necessary or desirable to the usual business of
petitioners. However, it should be deemed part of the nature of his
work that he can only work as a stevedore in the absence of the
employee regularly employed for the very same function. Moreover,
respondent does not contest that he was well aware that he would
only be given work when there are absent or unavailable employees.
Respondent also does not allege, nor is there any showing, that he
was disallowed or prevented from offering his services to other cargo
handlers in the other piers at the North Harbor other than
petitioners.

As aforestated, the situation of respondent is akin to that of a

seasonal or project or term employee, albeit on a daily basis. Under
MAGIS YOUNG ACHIEVERS' LEARNING CENTER v. ADELAIDA P. Full-time teachers who have rendered three years of satisfactory
MANALO, GR No. 178835, 2009-02-13 service shall be considered permanent.
Facts: On December 3, 2003, Labor Arbiter (LA) Renell Joseph R. dela Cruz
rendered a Decision[8] dismissing the complaint for illegal dismissal,
On April 18, 2002, respondent Adelaida P. Manalo was hired as a
including the other claims of respondent, for lack of merit, except
teacher and acting principal of petitioner Magis Young Achievers'
that it ordered the payment of her 13th month pay in the amount of
Learning Center with a monthly salary of P15,000.00.
P3,750.00.
respondent, on March 29, 2003, wrote a letter of resignation
On appeal, on October 28, 2005, the National Labor Relations
addressed to Violeta T. Cariño, directress of petitioner
Commission (NLRC), Third Division,[9] in its Decision[10] dated
March 31, 2003, respondent received a letter of termination from October 28, 2005, reversed the Arbiter's judgment. Petitioner was
petitioner,... On April 4, 2003, respondent instituted against ordered to reinstate respondent as a... teacher, who shall be credited
petitioner a Complaint[3] for illegal dismissal and non-payment of with one-year service of probationary employment, and to pay her
13th month pay, with a prayer for reinstatement, award of full the amounts of P3,750.00 and P325,000.00 representing her 13th
backwages and moral and exemplary damages. month pay and backwages, respectively.

respondent claimed that her termination violated the provisions of petitioner went up to the CA
her employment contract, and that the alleged abolition of the
The CA, in its Decision dated January 31, 2007, affirmed the NLRC
position of Principal was not among the grounds for termination by
decision and dismissed the petition.
an employer under Article 282[5] of the Labor Code.
Probationary employment shall not exceed six (6) months from the
nfringed Article 283[6] of the Labor Code, as the required 30-day
date the employee started working, unless it is covered by an
notice to the Department of Labor and Employment (DOLE) and to
apprenticeship agreement stipulating a longer period.
her as the employee, and the payment of... her separation pay were
not complied with. Issues:
terminated from service for the alleged expiration of her THE COURT OF APPEALS ERRED WHEN IT RULED THAT RESPONDENT
employment, but that her contract did not provide for a fixed term or MANALO IS A PERMANENT EMPLOYEE;
period.
Ruling:
Petitioner,... countered that respondent was legally terminated
For "academic personnel" in private schools, colleges and universities,
because the one-year probationary period, from April 1, 2002 to
probationary employment is governed by Section 92 of the 1992
March 3, 2003, had already lapsed and she failed to meet the criteria
Manual of Regulations for Private Schools
set by the school pursuant to the
Section 92. Probationary Period. - Subject in all instances to
Manual of Regulation for Private Schools, adopted by the then
compliance with the Department and school requirements, the
Department of Education, Culture and Sports (DECS), paragraph 75
probationary period for academic personnel shall not be more than
three (3) consecutive years of satisfactory service for those in the...
elementary and secondary levels, six (6) consecutive regular Accordingly, as held in Escudero, no vested right to a permanent
semesters of satisfactory service for those in the tertiary level, and appointment shall accrue until the employee has completed the
nine (9) consecutive trimesters of satisfactory service for those in the prerequisite three-year period necessary for the acquisition of a
tertiary level where collegiate courses are offered on a trimester... permanent status. Of course, the mere rendition of service for three...
basis consecutive years does not automatically ripen into a permanent
appointment. It is also necessary that the employee be a full-time
This was supplemented by DOLE-DECS-CHED-TESDA Order No. 1
teacher, and that the services he rendered are satisfactory.
dated February 7, 1996, which provides that the probationary period
for academic personnel shall not be more than three (3) consecutive Be that as it may, teachers on probationary employment enjoy
school years of satisfactory service for those in the elementary and security of tenure. In Biboso v. Victorias Milling Co., Inc.,[28] we made
secondary... levels the following pronouncement:
By this supplement, it is made clear that the period of probation for This is, by no means, to assert that the security of tenure protection
academic personnel shall be counted in terms of "school years," and of the Constitution does not apply to probationary employees. x x x
not "calendar years."[18] Then, Section 4.m(4)[c] of the Manual During such period, they could remain in their positions and any
delineates the... coverage of Section 92, by defining the term circumvention of their rights, in accordance with the statutory...
"academic personnel" to include: scheme, is subject to inquiry and thereafter correction by the
Department of Labor.
A)ll school personnel who are formally engaged in actual teaching
service or in research assignments, either on full-time or part-time But this guarantee of security of tenure applies only during the period
basis; as well as those who possess certain prescribed academic of probation. Once that period expires, the constitutional protection
functions directly supportive of teaching, such as registrars,... can no longer be... invoked.
librarians, guidance counselors, researchers, and other similar
There should be no question that the employment of the respondent,
persons. They include school officials responsible for academic
as teacher, in petitioner school on April 18, 2002 is probationary in
matters, and may include other school officials.
character, consistent with standard practice in private schools. In light
Thus, for academic personnel in private elementary and secondary of our disquisition above, we cannot subscribe to the proposition...
schools, it is only after one has satisfactorily completed the that the respondent has acquired regular or permanent tenure as
probationary period of three (3) school years and is rehired that he teacher. She had rendered service as such only from April 18, 2002
acquires full tenure as a regular or permanent employee. In this until March 31, 2003. She has not completed the requisite three-year
regard, Section period of probationary employment, as provided in the Manual. She
cannot, by... right, claim permanent status.
93 of the Manual pertinently provides:
The other issue to resolve is whether respondent, even as a
Sec. 93. Regular or Permanent Status. - Those who have served the
probationary employee, was illegally dismissed. We rule in the
probationary period shall be made regular or permanent. Full-time
affirmative.
teachers who have satisfactorily completed their probationary period
shall be considered regular or... permanent. As above discussed, probationary employees enjoy security of tenure
during the term of their probationary employment such that they
may only be terminated for cause as provided for by law, or if at the
end of the probationary period, the employee failed to meet the
reasonable... standards set by the employer at the time of the
employee's engagement. Undeniably, respondent was hired as a
probationary teacher and, as such, it was incumbent upon petitioner
to show by competent evidence that she did not meet the standards
set by the school. This... requirement, petitioner failed to discharge.
To note, the termination of respondent was effected by that letter
stating that she was being relieved from employment because the
school authorities allegedly decided, as a cost-cutting measure, that
the position of "Principal" was... to be abolished. Nowhere in that
letter was respondent informed that her performance as a school
teacher was less than satisfactory.
In other words, absent any concrete and competent proof that her
performance as a teacher was unsatisfactory from her hiring on April
18, 2002 up to March 31, 2003, respondent is entitled to continue her
three-year period of... probationary period, such that from March 31,
2003, her probationary employment is deemed renewed for the
following two school years.
WHEREFORE, the petition is DENIED. The assailed Decision dated
January 31, 2007 and the Resolution dated June 29, 2007 of the Court
of Appeals are AFFIRMED.
KIMBERLY-CLARK v. SECRETARY OF LABOR, GR No. 156668, 2007-11- The propriety of the issuance of the TRO's was again brought by
23 KILUSAN-OLALIA to this Court... docketed as G.R. No. 78791.
Facts: DOLE... judgment is hereby rendered in G.R. No. 77629
On June 30, 1986, the Collective Bargaining Agreement (CBA) Ordering the med-arbiter... to open and count the 64 challenged
executed by and between Kimberly-Clark... a Philippine-registered votes, and that the union with the highest number of votes be
corporation engaged in the manufacture, distribution, sale and thereafter declared as the duly elected certified bargaining
exportation of paper products, and United representative of the regular employees of KIMBERLY
Kimberly-Clark Employees Union-Philippine Transport and General Ordering KIMBERLY to pay the workers who have been regularized
Workers' Organization (UKCEO-PTGWO) expired. their differential pay
Within the freedom period,... KILUSAN-OLALIA, then a newly-formed The petition filed in G.R. No. 78791 is hereby DISMISSED.
labor organization, challenged the incumbency of UKCEO-PTGWO, by
Kimberly filed a motion for reconsideration of the DOLE Order
filing a petition for... certification election with the Ministry (now
Department) of Labor and Employment (MOLE) CA dismissed Kimberly's petition... orders... of the Secretary of Labor
are AFFIRMED.
A certification election was subsequently conducted... ith UKCEO-
PTGWO winning by a margin of 20 votes over KILUSAN-OLALIA. Kimberly... contends that the reckoning point in determining who
among its casual employees are entitled to regularization should be
Remaining as uncounted were 64 challenged ballots cast by 64 casual
April 21, 1986, the date KILUSAN-OLALIA filed a petition for
workers whose regularization was in question. KILUSAN-OLALIA filed
certification election to challenge the incumbency of UKCEO-PTGWO.
a... protest.
It... posits that in the implementation of the
MOLE issued an Order stating, among others, that the casual workers
not performing janitorial and yard maintenance services had attained Decision in G.R. No. 77629,... the DOLE should then exclude the
regular status on even date. UKCEO-PTGWO was then declared as the employees who had not rendered at least one (1) year of service from
exclusive bargaining representative of Kimberly's... employees the said date.
KILUSAN-OLALIA filed with this Court a petition for certiorari which Issues:
was docketed as G.R. No. 77629 assailing the Order of the MOLE with
prayer for a TRO NO

Kimberly dismissed from service several employees and refused to Court of Appeals committed serious error in affirming the ruling of the
heed the workers' grievances, impelling KILUSAN-OLALIA to stage a Secretary of Labor that even casual employees who had not rendered
strike one year of service were considered regular employees

Kimberly filed an injunction case with the NLRC... which prompted the Ruling:
latter to issue TRO's The law [thus] provides for two kinds of regular employees, namely:
(1) those who are engaged to perform activities which are usually
necessary or desirable in the usual business or trade of the employer;
and (2) those who have rendered at least one year of service,...
whether continuous or broken, with respect to the activity in which
they are employed. The individual petitioners herein who have been
adjudged to be regular employees fall under the second category.
It is not disputed that these workers have been in the employ of
KIMBERLY for more than one year at the time of the filing of the
petition for certification election by KILUSAN-OLALIA.
Owing to their length of service with the company, these workers
became regular employees, by operation of law, one year after they
were employed by KIMBERLY
Considering that an employee becomes regular with respect to the
activity in which he is employed one year after he is employed, the
reckoning date for determining his regularization is his hiring date.
Therefore, it is error for petitioner Kimberly to claim that it is from
April 21, 1986 that the one-year period should be counted. While it is
a fact that the issue of regularization came about only when KILUSAN-
OLALIA filed a petition for certification election, the concerned
employees attained regular status by operation of law.[
Further, the grant of the benefit of regularization should not be
limited to the employees who questioned their status before the
labor tribunal/court and asserted their rights; it should also extend to
those similarly situated.
JOSEFINA BENARES v. JAIME PANCHO, GR NO. 151827, 2005-04-29 The NLRC held that respondents attained the status of regular
seasonal workers of Hda. Ma
Facts:
Hence, respondents were illegally dismissed and should be awarded
Petition for Review on Certiorari[1] is the Decision[2] of the Court of
their money claims.
Appeals which affirmed the National Labor Relations Commission's
(NLRC) decision Petitioner's motion for reconsideration[6] dated May 12, 1999 was
denied in the resolution[7] dated October 29, 1999.
NLRC reversed the Labor Arbiter's... finding that respondents failed to
lay down the facts and circumstances surrounding their dismissal and Court of Appeals affirmed the NLRC's ruling, with the m... whether
to prove their entitlement to mone respondents are regular employees of Hacienda Maasin and thus
entitled to their monetary claims.  Related to this is the issue of
Complainants alleged to have started working as sugar farm workers
whether respondents were illegally terminated.
Respondent Hda. Maasin II is a sugar cane plantation located in
Issues:
Murcia, Negros Occidental with an area of 12-24 has. planted, owned
and managed by Josefina Benares, individual co-respondent. whether respondents are regular employees of Hacienda Maasin and
thus entitled to their monetary claims.  Related to this is the issue of
complainants thru counsel wrote the Regional Director of the
whether respondents were illegally terminated.
Department of Labor and Employment, Bacolod City for intercession
particularly in the matter of wages and other benefits mandated by Ruling:
law.
the ground for the dismissal of the complaint implies a finding that
routine inspection was conducted by p... report and recommendation respondents are regular employees.
was made, hence, the endorsement by the Regional Director of the
We also find no reason to disturb the finding that respondents were
instant case to the Regional
illegally terminated.  When there is no showing of clear, valid and
Arbitration Branch, NLRC, Bacolod City for proper hearing and legal cause for the termination of employment, the law considers the
disposition. matter a   case of illegal dismissal and the burden is on... the
employer to prove that the termination was for a just or authorized
complainants alleged to have been terminated    without being paid
cause.[25] In this case, as found both by the NLRC and the Court of
termination benefits by respondent in retaliation to what they have
Appeals, petitioner failed to prove any such cause for the dismissal of
done in reporting to the Department of Labor and Employment their
respondents.
working conditions viz-a-viz (sic) wages... and other mandat... ormal
complaint was filed for illegal dismissal with money claims. Principles:
Labor Arbiter a quo issued the assailed decision dismissing the The law provides for three kinds of employees: (1) regular employees
complaint for lack of merit. or those who have been engaged to perform activities which are
usually necessary or desirable in the usual business or trade of the
On June 26, 1998, complainants not satisfied with the aforecited
employer; (2) project employees or those whose employment has
ruling interposed the instant appeal
been fixed for a... specific project or undertaking, the completion or
termination of which has been determined at the time of the
engagement of the employee or where the work or service to be
performed is seasonal in nature and the employment is for the
duration of the season; and (3) casual... employees or those who are
neither regular nor project employees.
It deems as regular employees those "casual" employees who have
rendered at least one year of service regardless of the fact that such
service may be... continuous or broken.
If the employee has been performing the job for at least a year, even
if the performance is not... continuous and merely intermittent, the
law deems repeated and continuing need for its performance as
sufficient evidence of the necessity if not indispensability of that
activity to the business. Hence, the employment is considered
regular, but only with respect to such... activity and while such activity
exists.
HACIENDA BINO v. CANDIDO CUENCA, GR NO. 150478, 2005-04-15 However, the respondents refused to report back to work. With
respect to the respondents' money claims, petitioner Starke
Facts:
submitted payrolls evidencing payment thereof.
Hacienda Bino is a 236-hectare sugar plantation... represented in this
LA
case by Hortencia L. Starke, owner and operator of the said hacienda.
Labor Arbiter
The 76 individual respondents were part of the workforce of Hacienda
Bino... during the off-milling season, petitioner Starke issued an Order Drilon rendered a Decision... finding that petitioner Starke's notice...
or Notice which stated... all those who signed in favor of CARP are was tantamount to a termination of the respondents' services, and
expressing their desire to get out of employment on their own holding that the petitioner company was guilty of... illegal dismissal.
volition.
NLRC
Wherefore, beginning today, July 18, only those who did not sign for
NLRC affirmed
CARP will be given employment by Hda. Bino.
CA
The respondents regarded such notice as a termination of their
employment. As a consequence, they filed a complaint for illegal CA AFFIRMED
dismissal... with the NLRC... respondents as complainants alleged
inter alia that they are regular and permanent workers of the Issues:
hacienda and that they were dismissed without just and lawful cause. whether the respondents are regular or seasonal employees
They further alleged that they were dismissed because they... applied Ruling:
as beneficiaries under the CARP... petitioner Starke recounted that
the company's Board of Directors petitioned the Sangguniang Bayan Hacienda Fatima v. National Federation of Sugarcane Workers-Food
of Kabankalan for authority to re-classify, from agricultural to and General Trade[27] and added that the petitioners in the Mercado
industrial, commercial and residential, the whole of Hacienda Bino, case were "not hired regularly and repeatedly for the... same phase/s
except the portion earmarked for... the CARP. She asserted that half of agricultural work, but on and off for any single phase thereof."
of the workers supported the re-classification but the others, which The petitioners did not present any evidence that the respondents
included the herein respondents, opted to become beneficiaries of were required to perform certain phases of agricultural work for a
the land under the CARP. definite period of time. Although the petitioners assert that... the
Petitioner Starke alleged that in July 1996, there was little work in respondents made their services available to the neighboring
the... plantation as it was off-season; and so, on account of the haciendas, the records do not, however, support such assertion.
seasonal nature of the work, she issued the order giving preference to The primary standard for determining regular employment is the
those who supported the re-classification. reasonable connection between the particular activity performed by
She pointed out that when the milling season began in October 1996, the employee in relation to the usual trade or business of the
the work was plentiful again and she... issued notices to all workers, employer.[28] There is no doubt that the respondents were...
including the respondents, informing them of the availability of work. performing work necessary and desirable in the usual trade or
business of an employer. Hence, they can properly be classified as
regular employees.
For respondents to be excluded from those classified as regular
employees, it is not enough that they perform work or services that
are seasonal in nature.  They must have been employed only for the
duration of one season.
While the records... sufficiently show that the respondents' work in
the hacienda was seasonal in nature, there was, however, no proof
that they were hired for the duration of one season only.
the payrolls,[30] submitted in evidence by the petitioners, show that
they... availed the services of the respondents since 1991.  Absent any
proof to the contrary, the general rule of regular employment should,
therefore, stand. It bears stressing that the employer has the burden
of proving the lawfulness of his employee's dismissal.
Principles:
FILIPINAS PRE-FABRICATED BUILDING SYSTEMS v. ROGER D. merit.'[Petitioner] Filsystems, Inc. is hereby ordered to pay
PUENTE, GR NO. 153832, 2005-03-18 complainant Roger D. [F]uente the amount of FOUR THOUSAND TWO
HUNDRED TWELVE PHILIPPINE PESOS
Facts:
(P4,212.00) representing his pro-rata 13th month pay for 199
Without a valid cause, the employment of project employees cannot
be terminated prior to expiration.  Otherwise, they shall be entitled to However, [the] National Labor Relations Commission (NLRC)
reinstatement with full back wages.  However, if the project or work dismissed the same and the subsequent motion for reconsideratio...
is completed during the pendency of the... ensuing suit for illegal he Court of Appeals reversed the NLRC and the labor arbiter thus:
dismissal, the    employees shall be entitled only to full back wages
"The employment contracts signed by petitioner Puente do not have
from the date of the termination of their employment until the actual
the specified duration for each project contrary to the provision of
completion of the project or work.
Article 280 of the Labor Code, nor did petitioner work in the project
[Respondent] avers that he started working with [Petitioner] sites, but had always been assigned at the company plant... attending
Filsystems, Inc., a corporation engaged in construction business, on to the maintenance of all mobile cranes of the company, performing
June 12, 1989; that he was initially hired by [petitioner] company as tasks vital and desirable in the employer's usual business for ten (10)
an 'installer'; that he was later promoted to mobile crane... operator continuous years."[7]
and was stationed at the company premises at No. 69 Industria Road,
The CA concluded that respondent was a regular employee of
Bagumbayan, Quezon Cit... that his work was not dependent on the
petitioners
completion or termination of any project; that since his work was not
dependent on any project, his employment with the Hence, this Petition.[8]
[petitioner-]company was continuous and without interruption for
the past ten (10) years; that on October 1, 1999, he was dismissed Issues:
from his employment allegedly because he was a project employee 1.     Whether or not the Court of Appeals erred and committed grave
He filed a pro forma complaint for illegal dismissal against the abuse of discretion in finding that:
[petitioner] company on November 18, 1999. 'The employment contracts signed by private respondent Puente do
"The [petitioner-]company however claims that complainant was not have the specified duration for each project contrary to the
hired as a project employee in the company's various projects; that provision of Art. 280 of the Labor Code, nor did petitioner work in the
his employment contracts showed that he was a project worker with project sites, but had always been assigned at the company plant...
specific project assignments;... that after completion of each project... attending to the maintenance of all mobile cranes of the company,
assignment, his employment was likewise terminated and the same performing tasks vital and desirable in the company's usual business
was correspondingly reported to the DOLE. for ten (10) continuous years.'

"Labor Arbiter Veneranda C. Guerrero dismissed the complaint for "2.     Whether or not the Court a quo erred and committed grave
lack of merit, ruling thus: abuse of discretion in finding that the private respondent is a regular
employee and not a project employee?
'WHEREFORE, premises considered, judgment is hereby rendered
dismissing the complaint for illegal dismissal for lack of
In the main, the issues boil down to (1) whether Roger Puente is a (a) The duration of the specific/identified undertaking for which the
project employee, and (2) whether he is entitled to reinstatement worker is engaged is reasonably determinable.
with full back wages.
(b) Such duration, as well as the specific work/service to be
Ruling: performed, is defined in an employment agreement and is made clear
to the employee at the time of hiring.
The Petition is partly meritorious.
(c) The work/service performed by the employee is in connection with
First Issue:
the particular project/undertaking for which he is engaged.
Project Employee
(d) The employee, while not employed and awaiting engagement, is
The Labor Code defines regular, project and casual employees as free to offer his services to any other employer.
follows:
(e) The termination of his employment in the particular
ART. 280.  Regular and Casual Employment. - The provision of written project/undertaking is reported to the Department of Labor and
agreement to the contrary notwithstanding and regardless of the oral Employment (DOLE) Regional Office having jurisdiction over the
agreement of the parties, an employment shall be deemed to be workplace within 30 days    following the date of his separation from
regular where the employee has been engaged to perform... activities work, using... the prescribed form on employees'
which are usually necessary or desirable in the usual business or trade terminations/dismissals/suspensions.
of the employer, except where the employment has been fixed for a
(f) An undertaking in the employment contract by the employer to
specific project or undertaking the completion or termination of
pay completion bonus to the project employee as practiced by most
which has been determined at the time of the engagement of the...
construction companies.
employee or where the work or services to be performed is seasonal
in nature and the employment is for the duration of the season. The above-quoted provisions make it clear that a project employee is
one whose "employment has been fixed for a specific project or
With particular reference to the construction industry, to which
undertaking the completion or termination of which has been
Petitioner Filsystems belongs, Department (of Labor and
determined at the time of the engagement of the employee or where
Employment) Order No. 19,[11] Series of 1993, states:
the work or services... to be performed is seasonal in nature and the
2.1     Classification of employees. The employees in the construction employment is for the duration of the season." In D.M. Consunji, Inc.
industry are generally categorized as a) project employees and b) v. NLRC,[12] this Court has ruled that "the length of service of a
non-project employees.  Project employees are those employed in project employee is not the controlling test of employment... tenure
connection with a particular construction... project or phase thereof but whether or not 'the employment has been fixed for a specific
and whose employment is co-terminous with each project or phase of project or undertaking the completion or termination of which has
the project to which they are assigned. been determined at the time of the engagement of the employee.'"

2.2     Indicators of project employment. Either one or more of the In the present case, the contracts of employment[13] of Puente attest
following circumstances, among other, may be considered as to the fact that he was hired for specific projects.  His employment
indicators that an employee is a project employee. was coterminous with the completion of the projects for which he
had been hired.  Those contracts expressly... provided that his tenure
of employment depended on the duration of any phase of the project "We agree clearly that employment is on a Project to Project Basis
or on the completion of the construction projects.  Furthermore, and that upon termination of services there is no separation pay:                       
petitioners regularly submitted to the labor department reports of
                               
the termination of services of project... workers.
POSITION: Mobil Crane Operator
Furthermore, respondent's Complaint[17] specified the address of
Filsystems, as "69 INDUSTRIA ROAD, B.BAYAN Q.C.," but specified his PROJECT NAME: World Finance Plaza
place of work as "PROJECT TO PROJECT."  These statements, coupled
with the other pieces of evidence presented by... petitioners, LOCATION: Meralco Ave., Ortigas Center, Pasig City
convinces the Court that --contrary to the subsequent claims of ASSIGNMENT: Lifting & Hauling of Materials
respondent -- he performed his work at the project site, not at the
company's premises.         (Phase of Work/Piece of Work)"[18]

That his employment contract does not mention particular dates that Evidently, although the employment contract did not state a
establish the specific duration of the project does not preclude his particular date, it did specify that the termination of the parties'
classification as a project employee.  This fact is clear from the employment relationship was to be on a "day certain" -- the day
provisions of Clause 3.3(a) of Department Order No. 19, which when the phase of work termed "Lifting & Hauling of Materials" for
states:... a) Project employees whose aggregate period of continuous the "World Finance Plaza" project would be completed.  Thus,
employment in a construction company is at least one year shall be respondent cannot be considered to have been a regular employee. 
considered regular employees, in the absence of a "day certain" He was a project employee.
agreed upon by the parties for the termination of their... relationship.  That he was employed with Petitioner Filsystems for ten years in
Project employees who have become regular shall be entitled to various projects did not ipso facto make him a regular employee,
separation pay. considering that the definition of regular employment in Article 280
A "day" as used herein, is understood to be that which must of the Labor Code makes a specific exception with respect to... project
necessarily come, although is may not be known exactly when.  This employment.  The mere rehiring of respondent on a project-to-
means that where the final completion of a project or phase thereof project basis did not confer upon him regular employment status.
is in fact determinable and the expected completion is made known Second Issue:
to the... employee, such project employee may not be considered
regular, notwithstanding the one-year duration of employment in the Reinstatement
project or phase thereof or the one-year duration of two or more In termination cases, the burden of proving that an employee has
employments in the same project or phase of the object. been lawfully dismissed lies with the employer.[21] Thus, employers
Respondent's employment contract provides as follows: who hire project employees are mandated to state and, once its
veracity is challenged, to prove the actual basis for the... latter's
"x x x employment, under this contract is good only for the duration dismissal.[22]
of the project unless employee's services is terminated due to
completion of the phase of work/section of the project or piece of In the present case, petitioners claim that respondent's services were
work to which employee is assigned: terminated due to the completion of the project.[23] There is no
allegation or proof, however, that the World Finance Plaza project --
or the phase of work therein to which respondent... had been
assigned  -- was already completed by October 1, 1999, the date
when he was dismissed.  The inescapable presumption is that his
services were terminated for no valid cause prior to the expiration of
the period of his employment; hence, the termination... was illegal. 
Reinstatement with full back wages, inclusive of allowances and other
benefits or their monetary equivalents -- computed from the date of
his dismissal until his reinstatement -- is thus in order.[24]
However, if indeed the World Finance Plaza project has already been
completed during the pendency of this suit, then respondent -- being
a project employee -- can no longer be reinstated.[25] Instead, he
shall entitled to the payment of his salary and other... benefits
corresponding to the unexpired portion of his employment,[2
WHEREFORE, the Petition is PARTLY GRANTED.  Respondent Roger D.
Puente is DECLARED to be a project employee, whose employment
was terminated without any valid cause prior to its expiration and is
thus entitled to reinstatement with full back wages.  However, if...
reinstatement is no longer possible due to the completion of the
World Finance Plaza project during the pendency of this case,
Petitioner Filipinas Pre-Fabricated Building Systems (Filsystems), Inc.
is ORDERED to PAY respondent the equivalent of his salaries and
other employment... benefits, computed from October 1, 1999, until
the date of the project's actual completion.  No costs.
Principles:
Without a valid cause, the employment of project employees cannot
be terminated prior to expiration.  Otherwise, they shall be entitled to
reinstatement with full back wages.  However, if the project or work
is completed during the pendency of the... ensuing suit for illegal
dismissal, the    employees shall be entitled only to full back wages
from the date of the termination of their employment until the actual
completion of the project or work.
POSEIDON FISHING v. NLRC, GR NO. 168052, 2006-02-20 respondent to get his separation pay amounting to Fifty-Five
Thousand Pesos (P55,000.00).  However, he refused to accept the
Facts:
amount as he... believed that he did nothing illegal to warrant his
Article 280 of the Labor Code, in its truest sense, distinguishes immediate discharge from work.[
between regular and casual employees to protect the interests of
Rising to the occasion, private respondent filed a complaint for illegal
labor.  Its language evidently manifests the intent to safeguard the
dismissal on 11 July 2000 with the Labor Arbiter,... n private
tenurial interest of the worker who may be denied the... rights and
respondent's position paper, he averred that petitioner Poseidon
benefits due a regular employee by virtue of lopsided agreements
employed him as a Chief Mate sometime in January 1988.  He claimed
with the economically powerful employer who can maneuver to keep
that he was promoted to the position of Boat Captain five years after.
an employee on a casual status for as long as convenient.[1]
However, in 1999, he was demoted from Boat
Petitioner Poseidon Fishing is a fishing company engaged in the deep-
Captain to Radio Operator without any reason and shortly, he was
sea fishing industry.  Its various vessels catch fish in the outlying
terminated without just cause and without due process of law.
islands of the Philippines, which are traded and sold at the Navotas
Fish Port.  One of its boat crew was private respondent Jimmy S. Conversely, petitioners Poseidon and Terry de Jesus strongly asserted
Estoquia.[3] Petitioner Terry de Jesus is the manager of petitioner that private respondent was a contractual or a casual employee
company. whose services could be terminated at the end of the contract even
without a just or authorized cause... etitioners further posited that
Private respondent was employed by Poseidon Fishing in January
when the private respondent was engaged, it was made clear to him    
1988 as Chief Mate. After five years, he was promoted to Boat
that he was being employed only on a "por viaje" or per trip basis and
Captain. In 1999, petitioners, without reason, demoted respondent
that his employment would be terminated at the end of the trip for
from Boat Captain to Radio Operator of petitioner Poseidon.[4] As... a
which he... was being hired.  As such, the private respondent could
Radio Operator, he monitored the daily activities in their office and
not be entitled to separation pay and other monetary claims.
recorded in the duty logbook the names of the callers and time of
their calls.[5]... n 3 July 2000, private respondent failed to record a the Labor Arbiter decided in favor of private respondent.  The Labor
7:25 a.m. call in one of the logbooks.  However, he was able to record Arbiter held that even if the private respondent was a casual
the same in the other logbook.  Consequently, when he reviewed the employee, he became a regular employee after a period of one year
two logbooks, he noticed that he was not able to record the said call
On 24 September 2002, the NLRC affirmed the decision of the Labor
in one... of the logbooks so he immediately recorded the 7:25 a.m.
Arbiter with the modification, inter alia, that: (a) the private...
call after the 7:30 a.m. entry.[6]
respondent would be paid his separation pay equivalent to one-half
Around 9:00 o'clock in the morning of 4 July 2000, petitioner Terry de of his monthly pay for every year of service that he has rendered in
Jesus detected the error in the entry in the logbook.  Subsequently, lieu of reinstatement; and (b) an amount equivalent to six months
she asked private respondent to prepare an incident report to explain salary should be deducted from his full backwages because it was
the reason for the said oversight.[7] his... negligence in the performance of his work that brought about
his termination.
At around 2:00 o'clock in the afternoon of that same day, petitioner
Poseidon's secretary, namely Nenita Laderas, summoned private
Petitioners filed a Petition for Certiorari with the Court of Appeals, employment contract inked between the school and one engaged as
imputing grave abuse of discretion, but the Court of Appeals found its Athletic Director. The contract fixed a specific term of five... years
none. from the date of execution of the agreement. This Court upheld the
validity of the contract between therein petitioner and private
In a last attempt at vindication, petitioners filed the present petition
respondent, fixing the latter's period of employment.  This Court laid
for review with the following assignment of errors:
down the following criteria for judging the validity of such... fixed-
I. term contracts, to wit:

THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE Accordingly, and since the entire purpose behind the development of
RESPONDENT WAS A REGULAR EMPLOYEE WHEN IN TRUTH HE WAS A legislation culminating in the present Article 280 of the Labor Code
CONTRACTUAL/PROJECT/SEASONAL EMPLOYEE. clearly appears to have been, as already observed, to prevent
circumvention of the employee's right to be secure in his tenure,...
II. the clause in said article indiscriminately and completely ruling out all
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE written or oral agreements conflicting with the concept of regular
RESPONDENT WAS ILLEGALLY DISMISSED FROM EMPLOYMENT employment as defined therein should be construed to refer to the
substantive evil that the Code itself has singled out:  agreements...
Petitioners lament that fixed-term employment contracts are entered into precisely to circumvent security of tenure.  It should
recognized as valid under the law notwithstanding the provision of have no application to instances where a fixed period of employment
Article 280 of the Labor Code. Petitioners theorize that the Civil Code was agreed upon knowingly and voluntarily by the parties, without
has always recognized the validity of contracts with a fixed and any force, duress or improper pressure being brought to bear upon...
definite... period, and imposes no restraints on the freedom of the the employee and absent any other circumstances vitiating his
parties to fix the duration of the contract, whatever its object, be it consent, or where it satisfactorily appears that the employer and
species, goods or services, except the general admonition against employee dealt with each other on more or less equal terms with no
stipulations contrary to law, morals, good customs, public order and moral dominance whatever being exercised by the former over the
public... policy latter. 
Issues: Unless thus limited in its purview, the law would be made to apply to
The fundamental issue entails the determination of the nature of the purposes other than those explicitly stated by its framers; it thus
contractual relationship between petitioners and private respondent, becomes pointless and arbitrary, unjust in its effects and apt to lead
i.e., was private respondent a regular employee at the time his to absurd and unintended consequences.[15]
employment was terminated on 04 July 2000? (Emphasis supplied.)
Ruling: In the case under consideration, the agreement has such an objective
We are far from persuaded by petitioners' ratiocination. - to frustrate the security of tenure of private respondent- and
fittingly, must be nullified. In this case, petitioners' intent to evade the
Petitioners' construal of Brent School, Inc. v. Zamora, has certainly application of Article 280 of the Labor Code is unmistakable. In a...
gone astray. The subject of scrutiny in the Brent case was the span of 12 years, private respondent worked for petitioner company
first as a Chief Mate, then Boat Captain, and later as Radio Operator. tenurial security by the employee, they... should be disregarded for
His job was directly related to the deep-sea fishing business of being contrary to public policy.
petitioner Poseidon.  His work was, therefore, necessary and
As adroitly observed by the Labor Arbiter:
important... to the business of his employer.  Such being the scenario
involved, private respondent is considered a regular employee of There is nothing in the contract that says complainant, who happened
petitioner under Article 280 of the Labor Code, the law in point, which to be the captain of said vessel, is a casual, seasonal or a project
provides: worker. The date July 1 to 31, 1998 under the heading "Pagdating"
had been placed there merely to indicate the possible... date of
Art. 280. Regular and Casual Employment. The provisions of written
arrival of the vessel and is not an indication of the status of
agreement to the contrary notwithstanding and regardless of the oral
employment of the crew of the vessel.
agreement of the parties, an employment shall be deemed to be
regular where the employee has been engaged... to perform activities Actually, the exception under Article 280 of the Labor Code in which
which  are usually necessary or desirable in the usual business or the respondents have taken refuge to justify its position does not
trade of the employer, except where the employment has been fixed apply in the instant case. The proviso, "Except where the employment
for a specific project or undertaking the completion or termination of has been fixed for a specific project or undertaking the completion
which has been determined at the time of the... engagement of the or... determination of which has been determined at the time of the
employee or where the work or services to be performed is seasonal engagement of the employee or where the work or services to be
in nature and the employment is for the duration of the season. performed is seasonal in nature and the employment is for the
duration of the season." (Article 280 Labor Code), is inapplicable
An employment shall be deemed to be casual if it is not covered by
because the very... contract adduced by respondents is unclear and
the preceding paragraph: Provided, That any employee who has
uncertain. The kasunduan does not specify the duration that
rendered at least one year of service, whether such service is
complainant had been hired
continuous or broken, shall be considered a regular employee with
respect... to the activity in which he is employed and his employment In Integrated Contractor and Plumbing Works, Inc. v.
shall continue while such actually exists.
National Labor Relations Commission,[20] we held that the test to
Brent cited some familiar examples of employment contracts which determine whether employment is regular or not is the reasonable
may neither be for seasonal work nor for specific projects, but to connection between the particular activity performed by the
which a fixed term is an essential and natural appurtenance, i.e., employee in relation to the usual business or... trade of the
overseas employment contracts, appointments to the positions of... employer.  And, if the employee has been performing the job for at
dean, assistant dean, college secretary, principal, and other least one year, even if the performance is not continuous or merely
administrative offices in educational institutions, which are by intermittent, the law deems the repeated and continuing need for its
practice or tradition rotated among the faculty members, and where performance as sufficient evidence of the necessity, if... not
fixed terms are a necessity without which no reasonable rotation indispensability of that activity to the business
would be... possible.[16]  Thus, in Brent, the acid test in considering
fixed-term contracts as valid is: if from the circumstances it is Moreover, unlike in the Brent case where the period of the contract
apparent that periods have been imposed to preclude acquisition of was fixed and clearly stated, note that in the case at bar, the terms of
employment of private respondent as provided in the Kasunduan was
not only vague, it also failed to provide an actual... or specific date or 2. those who have rendered at least one year of service whether
period for the contract such service is continuous or broken
In Bustamante v. National Labor Relations Commission,[22] the Court Ostensibly, in the case at bar, at different times, private respondent
expounded on what are regular employees under Article 280 of the occupied the position of Chief Mate, Boat Captain, and Radio
Labor Code, viz: Operator. In petitioners' interpretation, however, this act of hiring
and re-hiring actually highlight private respondent's contractual
It is undisputed that petitioners were illegally dismissed from
status... saying that for every engagement, a fresh contract was
employment. Article 280 of the Labor Code, states:
entered into by the parties at the outset as the conditions of
ART. 280. Regular and Casual Employment. - The provisions of written employment changed when the private respondent filled in a
agreement to the contrary notwithstanding and regardless of the oral different position.  But to this Court, the act of hiring and re-hiring in
agreement of the parties, an employment shall be deemed to be various capacities is... a mere gambit employed by petitioner to
regular where the employee has been engaged to perform activities... thwart the tenurial protection of private respondent.  Such pattern of
which are usually necessary or desirable in the usual business or trade re-hiring and the recurring need for his services are testament to the
of the employer, except where the employment has been fixed for a necessity and indispensability of such services to petitioners' business
specific project or undertaking the completion or termination of or... trade.
which has been determined at the time of the engagement of the
Petitioners would brush off private respondent's length of service by
employee or... where the work or services to be performed is
stating that he had worked for the company merely for several
seasonal in nature and the employment is for the duration of the
years[25] and that in those times, his services were not exclusive to
season.
petitioners.  On the other hand, to prove his... claim that he had
An employment shall be deemed to be casual if it is not covered by continuously worked for petitioners from 1988 to 2000, private
the preceding paragraph: Provided, that, any employee who has respondent submitted a copy of his payroll[26] from 30 May 1988 to
rendered at least one year of service, whether such service is October 1988 and a copy of his SSS Employees Contributions[27] as of
continuous or broken, shall be considered a regular employee with the year
respect to the... activity in which he is employed and his employment
2000.  These documents were submitted by private respondent in
shall continue while such activity exists.
order to benchmark his claim of 12 years of service
This provision draws a line between regular and casual employment,
To recapitulate, it was after 12 long years of having private
a distinction however often abused by employers.  The provision
respondent under its wings when petitioners, possibly sensing a
enumerates two (2) kinds of employees, the regular employees and
brewing brush with the law as far as private respondent's
the casual employees.  The regular employees consist of the...
employment is concerned, finally found a loophole to kick private
following:
respondent out when the... latter failed to properly record a 7:25 a.m.
1. those engaged to perform activities which are usually call.  Capitalizing on this faux pas, petitioner summarily dismissed
necessary or desirable in the usual business or trade of the private respondent. On this note, we disagree with the finding of the
employer; and NLRC that private respondent was negligent on account of his failure
to properly record a... call in the log book.
As the records bear out, private respondent himself seasonably scope of which were specified at the time the employees were...
realized his oversight and in no time recorded the 7:25 a.m. call after engaged for that project.  In this case, petitioners have not shown
the 7:30 a.m. call. Gross negligence under Article 282 of the Labor that private respondent was informed that he will be assigned to a
Code, [29] as amended, connotes want of care in the... performance "specific project or undertaking."  As earlier noted, neither has it been
of one's duties, while habitual neglect implies repeated failure to established that he was informed of the duration and... scope of such
perform one's duties for a period of time, depending upon the project or undertaking at the time of their engagement.
circumstances.[30]  Here, it is not disputed that private respondent
More to the point, in Maraguinot, Jr. v. National Labor Relations
corrected straight away the recording of... the call and petitioners
Commission,[35] we ruled that once a project or work pool employee
failed to prove the damage or injury that such inadvertence caused
has been: (1) continuously, as opposed to intermittently, re-hired by
the company
the same employer for the same tasks or... nature of tasks; and (2)
We find, as the Labor Arbiter[31] had found, that there is no sufficient these tasks are vital, necessary and indispensable to the usual
evidence on record to prove private respondent's negligence, gross or business or trade of the employer, then the employee must be
simple... for that matter, in the performance of his duties to warrant a deemed a regular employee.
reduction of six months salary from private respondent's separation
n fine, inasmuch as private respondent's functions as described above
pay.  Moreover, respondent missed to properly record, not two or
are no doubt "usually necessary or desirable in the usual business or
three calls, but just a single call. It was also a... first infraction on the
trade" of petitioner fishing company and he was hired continuously
part of private respondent, not to mention that the gaffe, if at all,
for 12 years for the same nature of tasks, we are constrained to say...
proved to be innocuous
that he belongs to the ilk of regular employee.  Being one, private
Petitioners next assert that deep-sea fishing is a seasonal industry respondent's dismissal without valid cause was illegal.
because catching of fish could only be undertaken for a limited
WHEREFORE, the present petition is hereby DENIED.  The Decision of
duration or seasonal within a given year. Thus, according to
the Court of Appeals dated 14 March 2005 in CA-G.R. SP No. 81140 is
petitioners, private respondent was a seasonal or project employee.
hereby AFFIRMED WITH MODIFICATION by deleting the reduction of
We are not won over. an amount equivalent to six months of pay from... private
respondent's separation pay.  The case is remanded to the Labor
As correctly pointed out by the Court of Appeals, the "activity of
Arbiter for further proceedings solely for the purpose of determining
catching fish is a continuous process and could hardly be considered
the monetary liabilities of petitioners in accordance with the decision.
as seasonal in nature."
The Labor Arbiter is ORDERED to submit his... compliance thereon
In Philex Mining Corp. v. National Labor Relations Commission,[34] we within thirty (30) days from notice of this decision, with copies
defined project employees as those workers hired (1) for a specific furnished to the parties.  Costs against petitioners.
project or undertaking, and (2) the completion or termination of such
Principles:
project has been determined at the time of the engagement of the
employee. The principal test for determining whether... particular More to the point, in Maraguinot, Jr. v. National Labor Relations
employees are "project employees" as distinguished from "regular Commission,[35] we ruled that once a project or work pool employee
employees," is whether or not the "project employees" were assigned has been: (1) continuously, as opposed to intermittently, re-hired by
to carry out a "specific project or undertaking," the duration and the same employer for the same tasks or... nature of tasks; and (2)
these tasks are vital, necessary and indispensable to the usual
business or trade of the employer, then the employee must be
deemed a regular employee.
[G.R. No. 149985 May 5, 2006] September 3, 1996 (more than three years after her reinstatement) –
ARCEO filed a complaint for unfair labor practice, underpayment of
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, INC., Petitioner,
salary, underpayment of overtime pay, holiday pay, rest day pay and
vs. ROSALINA C. ARCEO,*** Respondent.
other monetary claims. She alleged in her complaint that, since her
FACTS: reinstatement, she had yet to be regularized and had yet to receive
the benefits due to a regular employee.
May 1990 – ARCEO applied for the position of telephone operator
with PLDT. She, however, failed the pre-employment qualifying
examination. Having failed the test, ARCEO requested PLDT to allow
DECISION of the labor arbiter, NLRC, CA:
her to work at the latter’s office even without pay. PLDT agreed and
assigned her to its commercial section where she was made to August 18, 1997 – The labor arbiter ruled that ARCEO was already
perform various tasks like photocopying documents, sorting out qualified to become a regular employee. He also found that PLDT
telephone bills and notices of disconnection, and other minor denied her all the benefits and privileges of a regular employee.
assignments and activities. After two weeks, PLDT decided to pay her
November 28, 1997 – The NLRC affirmed the decision of the labor
the minimum wage.
arbiter finding ARCEO eligible to become a regular employee.
February 15, 1991 – PLDT saw no further need for ARCEO's services
June 29, 2001 – The CA affirmed the decision of the NLRC.
and decided to fire her but, through the intervention of PLDT’s
commercial section supervisor, she was recommended for an on-the- ISSUE:
job training on minor traffic work. When she failed to assimilate
traffic procedures, the company transferred her to auxiliary services, Does the proviso in Art. 280 of the Labor Code which “regularizes” a
a minor facility. casual employee who has rendered at least one year of service
subject to the condition that the employment subsists or the position
Subsequently, ARCEO took the pre-qualifying exams for the position still exists?
of telephone operator two more times but again failed in both
attempts. HELD

October 30, 1991 – PLDT discharged ARCEO from employment. She Reinstatement to an “equivalent position” – PLDT’s argument that
then filed a case for illegal dismissal before the labor arbiter. On May respondent’s position has been abolished, if indeed true, does not
11, 1993, the arbiter ruled in her favor. PLDT was ordered to reinstate preclude ARCEO’s becoming a regular employee. The order to
ARCEO to her “former position or to an equivalent position.” reinstate her also included the alternative to reinstate her to “a
position equivalent thereto.” Thus, PLDT can still “regularize” her in
June 9, 1993 – ARCEO was reinstated as casual employee with a an equivalent position.
minimum wage of P106 per day. She was assigned to photocopy
documents and sort out telephone bills. PLDT failed to show position “no longer subsists” – Moreover, PLDT’s
argument does not hold water in the absence of proof that the
activity in which ARCEO was engaged (like photocopying of
documents and sorting of telephone bills) no longer subsists. Under
CAUSE OF ACTION:
Art. 280, any employee who has rendered at least one year of service
“shall be considered a regular employee with respect to the activity in
which he is employed and his employment shall continue while such
activity exists.” For PLDT’s failure to show that the activity
undertaken by ARCEO has been discontinued, we are constrained to
confirm her “regularization” in that position.
Date of regularization (when entitled to benefits) – Considering that
she has already worked in PLDT for more than one year at the time
she was reinstated, she should be entitled to all the benefits of a
regular employee from June 9, 1993 the day of her actual
reinstatement.
G.R. No. 183810: January 21, 2010 of January 17, 2002 in the regularization case, it had already
FARLEY FULACHE, MANOLO JABONERO, DAVID CASTILLO, JEFFREY undertaken a comprehensive review of its existing organizational
LAGUNZAD, MAGDALENA MALIG-ON BIGNO, FRANCISCO CABAS, structure to address its operational requirements.
JR., HARVEY PONCE and ALAN C. ALMENDRAS, Petitioners, v. ABS-
CBN BROADCASTING CORPORATION, Respondent.
In her April 21, 2003 decision in the illegal dismissal case,Labor
Arbiter Rendoque upheld the validity of ABS-CBN's contracting out of
BRION,J.:
certain work or services in its operations. The labor arbiter found that
petitioners Fulache, Jabonero, Castillo, Lagunzad and Atinen had been
FACTS:
dismissed due to redundancy, an authorized cause under the law.
The petitioners alleged that on December 17, 1999, ABS-CBN and the
The NLRC reversed the labor arbiters ruling in the illegal dismissal
ABS-CBN Rank-and-File Employees Union executed a collective
case; it found that petitioners Fulache, Jabonero, Castillo, Lagunzad
bargaining agreement (CBA) effective December 11, 1999 to
and Atinen had been illegally dismissed and awarded them
December 10, 2002. When they obtained copies of the agreement,
backwages and separation pay in lieu of reinstatement. The
they learned that they had been excluded from its coverage as ABS-
petitioners moved for reconsideration, contending that Fulache,
CBN considered them temporary and not regular employees, in
Jabonero, Castillo and Lagunzad are entitled to reinstatement and full
violation of the Labor Code. They claimed they had already rendered
backwages, salary increases and other CBA benefits as well as 13th
more than a year of service in the company and, therefore, should
month pay, cash conversion of sick and vacation leaves, medical and
have been recognized as regular employees entitled to security of
dental allowances, educational benefits and service awards.
tenure and to the privileges and benefits enjoyed by regular
employees. They asked that they be paid overtime, night shift
differential, holiday, rest day and service incentive leave pay. They
also prayed for an award of moral damages and attorneys fees. ABS-CBN likewise moved for the reconsideration of the decision,
reiterating that Fulache, Jabonero, Castillo and Lagunzad were
independent contractors. The NLRC stood by the ruling that the
Labor Arbiter Rendoque rendered his decisionholding that the
petitioners were regular employees entitled to the benefits and
petitioners were regular employees of ABS-CBN, not independent
privileges of regular employees. On the illegal dismissal case, the
contractors, and are entitled to the benefits and privileges of regular
petitioners, while recognized as regular employees, were declared
employees.
dismissed due to redundancy.

While the appeal before the NLRC was pending, ABS-CBN dismissed
Fulache, Jabonero, Castillo, Lagunzad and Atinen (all drivers) for their Petitioners filed a petition for certiorari before the CA, contending
refusal to sign up contracts of employment with service contractor that the NLRC committed grave abuse of discretion in denying them
Able Services. The four drivers and Atinen responded by filing a benefits under the CBA. The CA ruled that the petitioners failed to
complaint for illegal dismissal (illegal dismissal case). In defense, ABS- prove their claim to CBA benefits since they never raised the issue in
CBN alleged that even before the labor arbiter rendered his decision the compulsory arbitration proceedings, and did not appeal the labor
arbiters decision which was silent on their entitlement to CBA
benefits. On the illegal dismissal issue, the CA upheld the NLRC affirmed all the way up to the CA level ruled against ABS-CBNs
decision holding that Fulache, Jabonero, Castillo and Lagunzad were submission that they are independent contractors. Thus, as regular
not illegally dismissed as their separation from the service was due to rank-and-file employees, they fall within CBA coverage under the
redundancy. CBAs express terms and are entitled to its benefits.

The petitioners moved for reconsideration, but the CA denied the The termination of employment of the four drivers occurred under
motion in a resolution promulgated on July 8, 2008. Hence, the highly questionable circumstances and with plain and unadulterated
present petition. bad faith.

The records show that the regularization case was in fact the root of
ISSUE:
the resulting bad faith as this case gave rise and led to the dismissal
case.First, the regularization case was filed leading to the labor
1.Whether or not petitioners are entitled to CBA benefits
arbiters decision declaring the petitioners, including Fulache,
Jabonero, Castillo and Lagunzad, to be regular employees. ABS-CBN
2. Whether or petitioners were illegally dismissed
appealed the decision and maintained its position that the petitioners
HELD: were independent contractors.
As regular employees, the petitioners fall within the coverage of the
In the course of this appeal, ABS-CBN took matters into its own hands
bargaining unit and are therefore entitled to CBA benefits as a matter
and terminated the petitioners services, clearly disregarding its own
of law and contract
appeal then pending with the NLRC. Notably, this appeal posited that
the petitioners were not employees. To justify the termination of
The LA decision which was affirmed by the NLRC and the CA, finding
service, the company cited redundancy as its authorized cause but
petitioners to be regular employees and not independent contractors.
offered no justificatory supporting evidence. It merely claimed that it
This declaration unequivocally settled the petitioners employment
was contracting out the petitioners activities in the exercise of its
status: they are ABS-CBNs regular employees entitled to the benefits
management prerogative.
and privileges of regular employees. These benefits and privileges
arise from entitlements under the law (specifically, the Labor Code
By doing all these, ABS-CBN forgot labor law and its realities.
and its related laws), and from their employment contract as regular
It forgot that by claiming redundancy as authorized cause for
ABS-CBN employees, part of which is the CBA if they fall within the
dismissal, it impliedly admitted that the petitioners were regular
coverage of this agreement.
employees whose services, by law, can only be terminated for the just
and authorized causes defined under the Labor Code.
Under these terms, the petitioners are members of the appropriate
bargaining unit because they are regular rank-and-file employees and
Likewise ABS-CBN forgot that it had an existing CBA with a union,
do not belong to any of the excluded categories. Specifically, nothing
which agreement must be respected in any move affecting the
in the records shows that they are supervisory or confidential
security of tenure of affected employees; otherwise, it ran the risk of
employees; neither are they casual nor probationary employees.
committing unfair labor practice both a criminal and an administrative
Most importantly, the labor arbiters decision of January 17, 2002
offense. It similarly forgot that an exercise of management
prerogative can be valid only if it is undertaken in good faith and with
no intent to defeat or circumvent the rights of its employees under
the laws or under valid agreements.

Lastly, it forgot that there was a standing labor arbiters decision that,
while not yet final because of its own pending appeal, cannot simply
be disregarded. By implementing the dismissal action at the time the
labor arbiters ruling was under review, the company unilaterally
negated the effects of the labor arbiters ruling while at the same time
appealing the same ruling to the NLRC. This unilateral move is a direct
affront to the NLRCs authority and an abuse of the appeal process.

All these go to show that ABS-CBN acted with patent bad faith.

GRANTED
G.R. No. 170351 : March 30, 2011. which the CA affirmed.

LEYTE GEOTHERMAL POWER PROGRESSIVE EMPLOYEES UNION-ALU- ISSUES:

TUCP, Petitioner, v. PHILIPPINE NATIONAL OIL COMPANY-ENERGY
DEVT. CORP., Respondent. 1. Whether or not the officers and members of petitioner Union are
project employees of respondent
NACHURA, J.:
2. Whether the officers and members of the Union engaged in an
FACTS: illegal strike

Among PNOCs geothermal projects is the Leyte Geothermal Power HELD:

Project located at the Greater Tongonan Geothermal Reservation
inLeyte. Thus, the PNOC hired and employed hundreds of employees The petition is denied.
on a contractual basis, whereby, their employment was only good up
to the completion or termination of the project and would First issue: In accordance with Article 280 of the Labor Code, and as
automatically expire upon the completion of such project. Majority of explained in ALU-TUCP v. NLRC, the litmus test to determine whether
the employees hired by PNOC in its Leyte Geothermal Power Projects an individual is a project employee lies in setting a fixed period of
had become members of petitioner. In view of that circumstance, the employment involving a specific undertaking which completion or
petitioner demands from the PNOC for recognition of it as the termination has been determined at the time of the particular
collective bargaining agent of said employees and for a CBA employee's engagement. In this case, the officers and the members of
negotiation with it, which PNOC refused. petitioner Union were specifically hired as project employees for
respondents Leyte Geothermal Power Project.Consequently, upon
When the project was about to be completed, the PNOC served the completion of the project or substantial phase thereof, the
Notices of Termination of Employment upon the employees who are officers and the members of petitioner Union could be validly
members of the petitioner. On December 28, 1998, the petitioner terminated.
filed a Notice of Strike with DOLE on the ground of purported
commission by the latter of unfair labor practice for "refusal to
Petitioner Union is adamant, however, that the lack of interval in the
bargain collectively, union busting and mass termination." On the
employment contracts its officer and members negates the latter's
same day, the petitioner declared a strike and staged such strike.
status as mere project employees. However, petitioner Union's
Efforts to settle the dispute amicably failed.
members employment for more than a year does not equate to their
regular employment with respondent, as explained in Mercado, Sr. v.
Consequently, on January 15, 1999, PNOC filed a Complaint for Strike NLRC, which stated that the proviso in Article 280, deeming all those
Illegality, Declaration of Loss of Employment and Damages at the who had rendered service for more than one year as regular
NLRC-RAB and at the same time, filed a Petition for Cancellation of employees, only applies to casual employees, and not project
Petitioners Certificate of Registration with DOLE. These were employees.
consolidated. NLRC rendered a decision in favour of respondent,
Second issue: Article 263 of the Labor Code enumerates the requisites
for holding a strike. Petitioner Union's asseverations are belied by the
factual findings of the NLRC, as affirmed by the CA, which stated that
"the failure to comply with the mandatory requisites for the conduct
of strike is both admitted and clearly shown on record. Hence, it is
undisputed that no strike vote was conducted; likewise, the cooling-
off period was not observed and that the 7-day strike ban after the
submission of the strike vote was not complied with since there was
no strike vote taken." Petitioner Union's bare contention that it did
not hold a strike cannot trump the factual findings of the NLRC that
petitioner Union indeed struck against respondent

Petition is DENIED.
EGI v. ANDO, JR. Decision of the Labor Arbiter. Ando filed a motion for reconsideration,
but it was denied. He then filed a Rule 65 petition before the CA,
E. GANZON, INC. (EGI) and EULALIO GANZON, Petitioners  vs.
which granted the same annuling the assailed NLRC resolutions dated
FORTUNATO B. ANDO, JR., Respondent 
May 25, 2012 and July 17, 2012, . EGI's motion for reconsideration
G.R. No. 214183 was denied.

February 20, 2017 Issue:

Facts: Whether or not respondent Fortunato B. Ando, Jr., is a regular or a

project worker of E. GANZON, INC., (EIG)
On May 16, 2011, respondent Fortunato B. Ando, Jr. (Ando) filed a
complaint against petitioner E. Ganzon, Inc. (EGI) and its President, Ruling: 
Eulalio Ganzon, for illegal dismissal and money claims for:
Yes, respondent Fortunato B. Ando, Jr., is a project worker of E.
underpayment of salary, overtime pay, and 13th month pay; non-
GANZON, INC., (EIG). In the case at bar, The Court held that the CA
payment of holiday pay and service incentive leave; illegal deduction;
erred in ruling that the NLRC gravely abused its discretion when it
and attorneys fees. He alleged that he was a regular employee
sustained the Labor Arbiter's finding that Ando is not a regular
working as a finishing carpenter in the construction business of EGI;
employee but a project employee of EGI.
he was repeatedly hired from January 21, 2010 until April 30, 2011
when he was terminated without prior notice and hearing; his daily The terms regular, project, seasonal and casual employment are
salary of ₱292.00 was below the amount required by law; and wage taken from Article 280 of the Labor Code, as amended. Under Art.
deductions were made without his consent, such as rent for the 280, project employment is one which "has been fixed for a specific
barracks located in the job site and payment for insurance premium. project or undertaking the completion or termination of which has
been determined at the time of the engagement of the employee." To
On the other hand, EGI countered his contention that, as proven by
be considered as project-based, the employer has the burden of proof
the three (3) project employment contract, Ando was engaged as a
to show that: (a) the employee was assigned to carry out a specific
project worker (Formworker-2) in Bahay Pamulinawen Project in
project or undertaking and (b) the duration and scope of which were
Laoag, Ilocos Norte from June 1, 2010 to September 30, 20107and
specified at the time the employee was engaged for such project or
from January 3, 2011 to February 28, 20118 as well as in EGI-West
undertaking. It must be proved that the particular work/service to be
Insula Project in Quezon City, Metro Manila from February 22, 2011
performed as well as its duration are defined in the employment
to March 31, 2011; he was paid the correct salary based on the Wage
agreement and made clear to the employee who was informed
Order applicable in the region; he already received the 13th month
thereof at the time of hiring.
pay for 2010 but the claim for 2011 was not yet processed at the time
the complaint was filed; and he voluntarily agreed to pay ₱500.00 As the assigned project or phase begins and ends at determined or
monthly for the cost of the barracks, beds, water, electricity, and determinable times, the services of the project employee may be
other expenses of his stay at the job site. lawfully terminated at its completion. In this case, the three project
employment contracts signed by Ando explicitly stipulated the
The Labor Arbiter declared Ando a project employee of EGI but
agreement "to engage [his] services as a Project Worker" and that:
granted some of his money claims. Both parties elevated the case to
the NLRC, which dismissed the appeals filed and affirmed in toto the
5. [His] services with the Project will end upon completion of the Therefore, the petition is granted and the February 28, 2014 Decision
phase of work for which [he was] hired for and is tentatively set on and September 4, 2014 Resolution of the Court of Appeals are
(written date). However, this could be extended or shortened reversed and set aside. The decision of the labor arbiter is reinstated.
depending on the work phasing.
Further, Ando was adequately notified of his employment status at
the time his services were engaged by EGI for its projects.. The
contracts he signed consistently stipulated that his services as a
project worker were being sought. There was an informed consent to
be engaged as such. His consent was not vitiated. As a matter of fact,
Ando did not even allege that force, duress or improper pressure
were used against him in order to agree. His being a carpenter does
not suffice.
There was no attempt to frustrate Ando's security of tenure. His
employment was for a specific project or undertaking because the
nature of EGI's business is one which will not allow it to employ
workers for an indefinite period. As a corporation engaged in
construction and residential projects, EGI depends for its business on
the contracts it is able to obtain. Since work depends on the
availability of such contracts, necessarily the duration of the
employment of its work force is not permanent but coterminous with
the projects to which they are assigned and from whose payrolls they
are paid. It would be extremely burdensome for EGI as an employer if
it would have to carry them as permanent employees and pay them
wages even if there are no projects for them to work on.
The foregoing considered, EGI did not violate any requirement of
procedural due process by failing to give Ando advance notice of his
termination. Prior notice of termination is not part of procedural due
process if the termination is brought about by the completion of the
contract or phase thereof for which the project employee was
engaged.Such completion automatically terminates the employment
and the employer is, under the law, only required to render a report
to the Department of Labor and Employment (DOLE) on the
termination of employment.
ROY D. PASOS vs. PHILIPPINE NATIONAL CONSTRUCTION CORPORATI dence of its compliance with the requirement supposed photocopies 
ON G.R. No. 192394, 3 July 2013  of its termination reports, each listing petitioner as among the employ
ees affected. Unfortunately, none of the reports submitted pertain to 
FACTS:
the NAIA II Project. Moreover, DOLE NCR verified that petitioner is no
Based on the PNCC’s “Personnel Action Form Appointment for Project  t included in the list of affected workers based on the termination rep
Employment”, petitioner was designated as “Clerk II (Accounting)” an orts filed by PNCC. This certification from DOLE was not refuted by PN
d was assigned to the “NAIA – II Project.” However, his employment d CC.
id not end on the expiration but was extended until for more than tw
With regard his dismissal, a regular employee dismissed for a cause ot
o years. He was rehired, his employment was extended, rehired, and 
her than the just or authorized causes provided by law is illegally dism
finally, his project employment was terminated. However, his superio
issed. Petitioner’s regular employment was terminated by PNCC due t
r required him still to report. Upon the medical examination, he was r
o contract expiration or project completion, which are both not amon
equired by the doctor to take sick leave which he did. Upon his return 
g the just or authorized causes provided in the Labor Code, as amend
after 74 days, he was informed that he was already dismissed.
ed, for dismissing a regular employee. Thus, petitioner was illegally di
ISSUE: smissed and according to Article 279 of the Labor Code, he is entitled 
to reinstatement, full back wages, inclusive of allowances, and to his o
Whether or not employer’s failure to file termination reports after ev ther benefits or their monetary equivalent from the time his compens
ery project completion constitutes the regularity of the project emplo ation was withheld from him up to the time of his actual reinstatemen
yee. t.
RULING: Yes. Duration of project employment should be determined 
at the time of hiring. While for first three months, petitioner can be co
nsidered a project employee of PNCC, his employment thereafter, wh
en his services were extended without any specification of as to the d
uration, made him a regular employee of PNCC. And his status as a re
gular employee was not affected by the fact that he was assigned to s
everal other projects and there were intervals in between said project
s since he enjoys security of tenure.
Moreover, failure of an employer to file termination reports after eve
ry project completion proves that an employee is not a project emplo
yee.  Records clearly showed that PNCC did not report the terminatio
n of petitioner’s supposed project employment for the NAIA II Project 
to the DOLE. Department Order No. 19, or the “Guidelines Governing 
the Employment of Workers in the Construction Industry,” requires e
mployers to submit a report of an employee’s termination to the near
est public employment office every time an employee’s employment i
s terminated due to a completion of a project. PNCC submitted as evi
G.R. No. 204406, February 26, 2014 19, hence allowing the prevention of acquisition of tenurial security
by project or work pool employees who have already gained the
MACARTHUR MALICDEM AND HERMENIGILDO FLORES,Petitioners, status of regular employees by the employers conduct.
v. MARULAS INDUSTRIAL CORPORATION AND MIKE
MANCILLA,Respondents.
The test to determine whether employment is regular or not is the
FACTS:
reasonable connection between the particular activity performed by
Petitioners Malicdem and Flores were hired by respondent
the employee in relation to the usual business or trade of the
corporation as extruder operators in 2006 They were responsible for
employer. If the employee has been performing the job for at least
the bagging of filament yarn, the quality of pp yarn package and the
one year, even if the performance is not continuous or merely
cleanliness of the work place area. Their employment contracts were
intermittent, the law deems the repeated and continuing need for its
for a period of one (1) year. Every year thereafter, they would sign a
performance as sufficient evidence of the necessity, if not
Resignation/Quitclaim in favor of Marulas a day after their contracts
indispensability of that activity to the business.
ended, and then sign another contract for one (1) year until such time
that they were told not to report to work anymore. They were asked
to sign a paper acknowledging the completion of their contractual It is clear then that there was deliberate intent on the part of the
status. Claiming that they were illegally dismissed, the corporation employer to prevent the regularization of petitioners. To begin with,
countered that their contracts showed that they were fixedterm there is no actual project. The only stipulations in the contracts were
employees for a specific undertaking which was to work on a the dates of their effectivity, the duties and responsibilities of the
particular order of a customer for a specific period. Their severance petitioners as extruder operators, the rights and obligations of the
from employment then was due to the expiration of their contracts. parties, and the petitioners compensation and allowances. As there
was no specific project or undertaking to speak of, the respondents
ISSUE: Whether or not petitioners were illegally dismissed cannot invoke the exception in Article 280 of the Labor Code.This is a
clear attempt to frustrate the regularization of the petitioners and to
HELD: Yes. CA affirming NLRC decision annulled and set aside circumvent the law.

Labor Law: Effect of continuous re-hiring of a project employee for

the same tasks that are vital, necessary and indispensable to the Even granting that petitioners were project employees, they can still
usual trade or business of the employer be considered as regular as they were continuously hired by the same
Once a project or work pool employee has been: (1) continuously, as employer for the same position as extruder operators. Being
opposed to intermittently, rehired by the same employer for the responsible for the operation of machines that produced sacks, their
same tasks or nature of tasks; and (2) these tasks are vital, necessary work was vital and indispensable the business of the employer.
and indispensable to the usual business or trade of the employer,
then the employee must be deemed a regular employee, pursuant to The respondents cannot use the alleged expiration of the
Article 280 of the Labor Code and jurisprudence. To rule otherwise employment contracts of the petitioners as a shield of their illegal
would allow circumvention of labor laws in industries not falling acts. The project employment contracts that the petitioners were
within the ambit of Policy Instruction No. 20/Department Order No. made to sign every year since the start of their employment were
only a stratagem to violate their security of tenure in the company.
The respondents invocation ofWilliam Uy Construction Corp. v.
Trinidadis misplaced because it is applicable only in cases involving
the tenure of project employees in the construction industry. It is
widely known that in the construction industry, a project employees
work depends on the availability of projects, necessarily the duration
of his employment. It is not permanent but coterminous with the
work to which he is assigned.It would be extremely burdensome for
the employer, who depends on the availability of projects, to carry
him as a permanent employee and pay him wages even if there are
no projects for him to work on.The rationale behind this is that once
the project is completed it would be unjust to require the employer
to maintain these employees in their payroll.

Under Article 279 of the Labor Code, an employee who is unjustly

dismissed from work shall be entitled to reinstatement without loss
of seniority rights and other privileges and to his full backwages,
inclusive of allowances, and to his other benefits or their monetary
equivalent computed from the time his compensation was withheld
from him up to the time of his actual reinstatement.
G.R. No. 166109 : February 23, 2011 HELD:

EXODUS INTERNATIONAL CONSTRUCTION CORPORATION and The petition is partly meritorious.

ANTONIO P. JAVALERA, Petitioners, v.GUILLERMO BISCOCHO,
FERNANDO PEREDA, FERDINAND MARIANO, GREGORIO BELLITA and In illegal dismissal cases, it is incumbent upon the employees to first
MIGUEL BOBILLO, Respondent. establish the fact of their dismissal before the burden is shifted to the
employer to prove that the dismissal was legal. Here, there was no
DEL CASTILLO, J.: evidence that respondents were dismissed nor were they prevented
from returning to their work. It was only respondents’
FACTS: unsubstantiated conclusion that they were dismissed.

Petitioner Exodus International Construction Corporation (Exodus) is a

duly licensed labor contractor for the painting of residential houses,
condominium units and commercial buildings.

In the furtherance of its business, Exodus hired respondents as

painters on different dates. Guillermo, Fernando, Ferdinand, and
Miguel filed a complaint for illegal dismissal and non-payment of
holiday pay, service incentive leave pay, 13th month pay and night-
shift differential pay.

The Labor Arbiter rendered a Decision exonerating petitioners from

the charge of illegal dismissal as respondents chose not to report for
work. However, she allowed the claims for holiday pay, service
incentive leave pay and 13th month pay. The Decision was affirmed
by the NLRC and the CA. They opined that in a situation where the
employer has complete control over the records and could thus easily
rebut any monetary claims against it but opted not to lift any finger,
the burden is on the employer and not on the complainants.

ISSUE: Whether or not the CA erred and committed grave abuse of

discretion in ordering the reinstatement of respondents to their
former positions and affirming the award granted by the lower
tribunals.
D.M. CONSUNJI v. ANTONIO GOBRES, GR No. 169170, 2010-08-08 Moreover,  petitioner  claimed  that respondents have been duly paid
their service incentive leave pay and 13th month pay through their
Facts:
respective bank accounts, as evidenced by bank remittances.
Respondents... worked as carpenters in the construction projects of 
Respondents replied that the Quad 4-Project at Glorietta, Ayala,
petitioner  D.M. Consunji, Inc.
Makati City was estimated to take two years to finish, but they were
Their... termination from employment for each project was reported dismissed within the two-year period. They had no prior notice of
to the Department of Labor and Employment their termination.

Respondents' last assignment was at Quad Labor Arbiter rendered a Decision... dismissing respondents'
complaint.
4-Project in Glorietta, Ayala, Makati... respondents saw their names 
included in the Notice of Termination posted on the bulletin board at Labor Arbiter found that respondents were project employees, that
the project premises. they were dismissed from the last project they were assigned to when
their respective... phases of work were completed, and that petitioner
Respondents filed a Complaint with the Arbitration Branch of the D.M. Consunji, Inc. and David M. Consunji reported their termination
National Labor Relations Commission (NLRC) against petitioner D.M. of services to the DOLE in accordance with the requirements of law.
Consunji, Inc. and David M. Consunji for illegal dismissal, and non-
payment of 13th month pay, five (5) days service... incentive leave NLRC affirmed the decision of the Labor Arbiter, and dismissed the
pay, damages and attorney's fees. appeal for lack of merit.

Petitioner D.M. Consunji, Inc. and David M. Consunji countered that Respondents' motion for reconsideration was denied by the NLRC
respondents, being project employees, are covered by Policy
Court of Appeals sustained the findings of the NLRC that respondents
Instruction No. 20... with respect to their separation or dismissal.
are project employees.
Respondents were employed... per project undertaken by petitioner
Labor Arbiter and [the] NLRC correctly applied Article 280 of the
company and within varying estimated periods indicated in their
Labor Code when it ruled that petitioners' employment, which is fixed
respective project employment contracts.
for [a] specific project and the completion of which has been
petitioner and David M. Consuji averred that respondents' services determined at the time that their services were engaged, makes...
were terminated... when their phases of work for which their services them project employees.
were engaged were completed or when the projects themselves were
CA stated that although respondents were project employees, they
completed.
were entitled to know the reason for their dismissal and to be heard
Petitioner contended... that since respondents were terminated by on whatever claims they might have.
reason of the completion of their respective phases of work in the
It held that respondents' right to statutory due process was violated
construction project, their termination was warranted and legal.
for lack of advance notice of their... termination, even if they were
validly terminated for having completed the phases of work for which
they were hired.
Hence, the Court of Appeals ordered petitioner and David M. Consunji undertaking the completion or termination of which has been
to pay respondents P20,000.00 each as nominal damages for lack of determined at the time of the engagement of the employee or where
advance notice of their termination. the work or services... to be performed is seasonal in nature and the
employment is for the duration of the season."
Petitioner and David M. Consunji filed a partial motion for
reconsideration and prayed that... deleting the award of nominal In this case, the Labor Arbiter, the NLRC and the Court of Appeals all
damages to each respondent. found that respondents, as project employees, were validly
terminated due to the  completion  of  the  phases of work for which
Court of Appeals denied  the  partial motion for reconsideration.
their services were engaged.
Court ruled that even if the dismissal is legal, the employer should still
However, the Court of Appeals held that respondents were entitled to
indemnify the employee for the violation of his statutory rights.
nominal damages, because petitioner failed to give them advance
Petitioner D.M. Consunji, Inc. filed this petition raising this question of notice of their termination.
law
respondents,  in this case, were not terminated for just cause under
Petitioner contends that the  award of nominal damages in the Article 282 of the Labor Code.
amount of P20,000.00 to each respondent is unwarranted under
Instead, respondents... were terminated due to the completion of the
Section 2 (III), Rule XXIII, Book V of the Omnibus Rules Implementing
phases of work for which their services were engaged.
the Labor Code
As project employees, respondents' termination is governed by
"If the termination is brought about by the... completion of the
Section 1 (c) and Section 2 (III), Rule XXIII (Termination of
contract or phase thereof,  no prior notice is required."
Employment), Book V of the Omnibus Rules Implementing  the Labor
Petitioner also contends that Code.

The termination therein was for just cause due to abandonment of Section 1.  Security of tenure. -- (a) In cases of regular employment,
work, while in this case, respondents were terminated due to the the employer shall not terminate the services of an employee except
completion of the phases of work. for just or authorized causes as provided by law, and subject to the
requirements of due process.
Issues:
(c) In cases of project employment or employment covered by
The main  issue  is  whether or not respondents, as project legitimate contracting or sub-contracting arrangements, no employee
employees, are entitled to nominal damages for lack of advance shall be dismissed prior to the completion of the project or phase
notice of their dismissal. thereof for which the employee was engaged, or prior to... the
Ruling: expiration of the contract between the principal and contractor,
unless the dismissal is for just or authorized cause subject to the
The petition is meritorious. requirements of due process or prior notice, or is brought about by
A project employee is defined under Article 280 of the Labor Code as the completion of the phase of the project or contract for which... the
one whose "employment has been fixed for a specific project or employee was engaged.
Hence, the cited provision's requirements of due process or prior
notice when an... employee is  dismissed for just or authorized
cause... prior  to the completion of the project or phase thereof for
which the employee was engaged do not apply to  this case.
Section 2 (III), Rule XXIII, Book V of the Omnibus Rules Implementing
the Labor Code provides
III. If the termination is brought about by the completion of the
contract or phase thereof, no prior notice is required.  If the
termination is brought about by the failure of an employee to meet
the standards of the employer in the case of probationary...
employment, it shall be sufficient that a written notice is served the
employee within a reasonable time from the effective date of
termination.
In this case, the Labor Arbiter, the NLRC and the Court of Appeals all
found that respondents were validly terminated due to the
completion of the phases of work for which  respondents' services 
were engaged.
"If the... termination is brought about by the completion of the
contract or phase thereof, no prior notice is required."
Hence, prior or advance notice of termination is not part of
procedural due process if the termination is brought about by the
completion of the contract or phase thereof for which the employee
was engaged.
WHEREFORE, the petition is GRANTED. The Decision of the Court of
Appeals in CA-G.R. SP No. 70708, dated March 9, 2005, insofar as it
upholds the validity of the dismissal of respondents is AFFIRMED, but
the award of nominal damages to respondents is
DELETED. The  Resolution  of the Court of Appeals, dated August 2,
2005, is SET ASIDE.
No costs.
SO ORDERED.
G.R. No. 183572 : April 13, 2010
Because of AMACCs action on the salary increases, the petitioners
YOLANDA M. MERCADO, CHARITO S. DE LEON, DIANA R. LACHICA, filed a complaint with the Arbitration Branch of the NLRC on July 25,
MARGARITO M. ALBA, JR., and FELIX A. TONOG, Petitioners, v. AMA 2000, for underpayment of wages, non-payment of overtime and
COMPUTER COLLEGE-PARAQUE CITY, INC., Respondent. overload compensation, 13th month pay, and for discriminatory
practices.
FACTS:
On September 7, 2000, the petitioners individually received a
AMACC is an educational institution engaged in computer-based
memorandum from AMACC, through Human Resources Supervisor
education in the country. One of AMACCs biggest schools in the
Mary Grace Beronia, informing them that with the expiration of their
country is its branch at Paraque City. The petitioners were faculty
contract to teach, their contract would no longer be renewed.
members who started teaching at AMACC on May 25, 1998. The
petitioner Mercado was engaged as a Professor 3, while petitioner
The petitioners amended their labor arbitration complaint to include
Tonog was engaged as an Assistant Professor 2. On the other hand,
the charge of illegal dismissal against AMACC. In their Position Paper,
petitioners De Leon, Lachica and Alba, Jr., were all engaged as
the petitioners claimed that their dismissal was illegal because it was
Instructor 1. The petitioners executed individual Teachers Contracts
made in retaliation for their complaint for monetary benefits and
for each of the trimesters that they were engaged to teach, with the
discriminatory practices against AMACC. The petitioners also
following common stipulation:
contended that AMACC failed to give them adequate notice; hence,
their dismissal was ineffectual.
POSITION. The TEACHER has agreed to accept a non-tenured
appointment to work in the College of xxx effective xxx to xxx or for
the duration of the last term that the TEACHER is given a teaching
AMACC contended in response that the petitioners worked under a
load based on the assignment duly approved by the DEAN/SAVP-COO.
contracted term under a non-tenured appointment and were still
within the three-year probationary period for teachers. Their
For the school year 2000-2001, AMACC implemented new faculty
contracts were not renewed for the following term because they
screening guidelines, set forth in its Guidelines on the
failed to pass the Performance Appraisal System for Teachers (PAST)
Implementation of AMACC Faculty Plantilla. Under the new screening
while others failed to comply with the other requirements for
guidelines, teachers were to be hired or maintained based on
regularization, promotion, or increase in salary. This move, according
extensive teaching experience, capability, potential, high academic
to AMACC, was justified since the school has to maintain its high
qualifications and research background. The performance standards
academic standards.
under the new screening guidelines were also used to determine the
present faculty members entitlement to salary increases. The
On March 15, 2002, Labor Arbiter (LA) Florentino R. Darlucio declared
petitioners failed to obtain a passing rating based on the performance
in his decision that the petitioners had been illegally dismissed, and
standards; hence AMACC did not give them any salary increase.
ordered AMACC to reinstate them to their former positions without
loss of seniority rights and to pay them full backwages, attorneys fees
and 13th month pay. offers, Article 281 should assume primacy and the fixed-period
character of the contract must give way. This conclusion is
On appeal, the NLRC in a Resolution dated July 18, 2005denied immeasurably strengthened by the petitioners and the AMACCs
AMACCs appeal for lack of merit and affirmedin toto the LAs ruling. In hardly concealed expectation that the employment on probation
a decision issued on NoVember 29, 2007,the CA granted AMACCs could lead to permanent status, and that the contracts are renewable
petition for certiorari and dismissed the petitioners complaint for unless the petitioners fail to pass the schools standards.
illegal dismissal.
To highlight, a fixed-term contract specifically used for the fixed term
The CA ruled that under the Manual for Regulations for Private it offers, a replacement teacher, for example, may be contracted for a
Schools, a teaching personnel in a private educational institution (1) period of one year to temporarily take the place of a permanent
must be a full time teacher; (2) must have rendered three consecutive teacher on a one-year study leave. The expiration of the replacement
years of service; and (3) such service must be satisfactory before he teachers contracted term, under the circumstances, leads to no
or she can acquire permanent status. probationary status implications as she was never employed on
probationary basis; her employment is for a specific purpose with
ISSUE: particular focus on the term and with every intent to end her teaching
relationship with the school upon expiration of this term.
Whether the Petitioner had been illegally dismissed.
HELD:
If the school were to apply the probationary standards (as in fact it
The decision of the Court of Appeals is overruled. says it did in the present case), these standards must not only be
reasonable but must have also been communicated to the teachers at
LABOR LAW the start of the probationary period, or at the very least, at the start
of the period when they were to be applied. These terms, in addition
Nothing is illegitimate in defining the school-teacher relationship in to those expressly provided by the Labor Code, would serve as the
this manner. The school, however, cannot forget that its system of just cause for the termination of the probationary contract. As
fixed-term contract is a system that operates during the probationary explained above, the details of this finding of just cause must be
period and for this reason is subject to the terms of Article 281 of the communicated to the affected teachers as a matter of due process.
Labor Code. Unless this reconciliation is made, the requirements of
this Article on probationary status would be fully negated as the AMACC, by its submissions, admits that it did not renew the
school may freely choose not to renew contracts simply because their petitioners contracts because they failed to pass the Performance
terms have expired. The inevitable effect of course is to wreck the Appraisal System for Teachers (PAST) and other requirements for
scheme that the Constitution and the Labor Code established to regularization that the school undertakes to maintain its high
balance relationships between labor and management. academic standards.The evidence is unclear on the exact terms of the
standards, although the school also admits that these were standards
Given the clear constitutional and statutory intents, we cannot but under the Guidelines on the Implementation of AMACC Faculty
conclude that in a situation where the probationary status overlaps Plantilla put in place at the start of school year 2000-2001.
with a fixed-term contract not specifically used for the fixed term it
Given the period that has lapsed and the inevitable change of
circumstances that must have taken place in the interim in the
academic world and at AMACC, which changes inevitably affect
current school operations, we hold that - in lieu of reinstatement - the
petitioners should be paid separation pay computed on a trimestral
basis from the time of separation from service up to the end of the
complete trimester preceding the finality of this Decision. The
separation pay shall be in addition to the other awards, properly
recomputed, that the LA originally decreed.

GRANTED.
SAINT MARY’S UNIVERSITY v. CA, GR NO. 157788, 2005-03-08 Respondent argues that, as early as 1995, he had a permanent
appointment as Assistant Professor, and he was a permanent
Facts:
employee regardless of the provisions of the Manual of Regulations
Respondent Marcelo Donelo started teaching on a contractual basis for Private Schools.  He asserts that he should not be faulted for not
at St. Mary's University in 1992.  In 1995, he was issued an carrying a load... of at least 18 units since the university unilaterally
appointment as an Assistant Professor I.  Later on, he was promoted controls his load assignment in the same manner that the university
to Assistant Professor III.  He taught until the first semester of... has the prerogative to shorten his probationary period.
school year 1999-2000 when the school discontinued giving him
Issues:
teaching assignments.  For this, respondent filed a complaint for
illegal dismissal against the university. Plainly, the ultimate questions before us are:
In its defense, petitioner St. Mary's University showed that Was respondent a full-time teacher?
respondent was merely a part-time instructor and, except for three
Had he attained permanent status?
semesters, carried a load of less than eighteen units.  Petitioner
argued that respondent never attained permanent or regular status Was he illegally dismissed?
for he was... not a full-time teacher.  Further, petitioner showed that
respondent was under investigation by the university for giving Ruling:
grades to students who did not attend classes. WHEREFORE, the petition is GRANTED.  The Decision dated May 21,
The Labor Arbiter ruled that respondent was lawfully dismissed 2002 and the Resolution dated February 12, 2003 of the Court of
because he had not attained permanent or regular status pursuant to Appeals in CA-G.R. SP No. 63240, which sustained those of the NLRC,
the Manual of Regulations for Private Schools.  The Labor Arbiter held are NULLIFIED and SET ASIDE.  The
that only full-time teachers with regular loads of at least 18 units,... Decision of the Executive Labor Arbiter of the Regional Arbitration
who have satisfactorily completed three consecutive years of service Branch II, Tuguegarao City, Cagayan, is hereby REINSTATED.
qualify as permanent or regular employees.
Section 93 of the 1992 Manual of Regulations for Private Schools,
n appeal by respondent, the National Labor Relations Commission provides that full-time teachers who have satisfactorily completed
(NLRC)... reversed the Decision of the Labor Arbiter and ordered the their probationary period shall be considered regular or permanent.
reinstatement of respondent without loss of seniority right... [6] Furthermore, the probationary period shall not be... more than six
petitioner elevated the matter... to the Court of Appeals, which consecutive regular semesters of satisfactory service for those in the
affirmed the Decision of the NLRC. tertiary level.[7] Thus, the following requisites must concur before a
Petitioner contends that respondent did not attain permanent status private school teacher acquires permanent status: (1) the teacher is a
since he did not carry a load of at least 18 units for three consecutive full-time teacher; (2) the... teacher must have rendered three
years; and that only full-time teachers can attain permanent status.  consecutive years of service; and (3) such    service must have been
Further, since respondent was not a permanent employee, the... satisfactory.
twin-notice requirement in the termination of the latter's In the present case, petitioner claims that private respondent lacked
employment did not apply the requisite years of service with the university and also the    
appropriate quality of his service, i.e., it is less than satisfactory.  The there are full-time teachers who are allowed by the university to take
basic question, however, is... whether respondent is a full-time fewer load, in this case, respondent did not show that he belonged to
teacher. the latter group, even... after the university presented his teaching
record.  With a teaching load of twelve units or less, he could not
Section 45 of the 1992 Manual of Regulations for Private Schools
claim he worked for the number of hours daily as prescribed by
provides that full-time academic personnel are those meeting all the
Section 45 of the Manual.  Furthermore, the records also indubitably
following requirements:
show he was employed... elsewhere from 1993 to 1996.
Who possess at least the minimum academic qualifications prescribed
Since there is no showing that respondent worked on a full-time basis
by the Department under this Manual for all academic personnel;
for at least three years, he could not have acquired a permanent
Who are paid monthly or hourly, based on the regular teaching loads status.[11] A part-time employee does not attain permanent status
as provided for in the policies, rules and standards of the Department no matter how long he has served the school.[12] And as a part-timer,
and the school; his services could be terminated by the school without being held
liable for illegal dismissal. Moreover, the requirement of twin-notice
Whose total working day of not more than eight hours a day is applicable only to regular or permanent employees could not be
devoted to the school; invoked by respondent.
Who have no other remunerative occupation elsewhere requiring Yet, this is not to say that part-time teachers may not have security of
regular hours of work that will conflict with the working hours in the tenure.  The school could not lawfully terminate a part-timer before
school; and the end of the agreed period without just cause.  But once the period,
Who are not teaching full-time in any other educational institution. semester, or term ends, there is no obligation on the... part of the
school to renew the contract of employment for the next period,
All teaching personnel who do not meet the foregoing qualifications semester, or term.
are considered part-time.
In this case, the contract of employment of the respondent was not
A perusal of the various orders of the then Department of Education, presented.  However, judicial notice may be taken that contracts of
Culture and Sports prescribing teaching loads shows that the regular employment of part-time teachers are generally on a per semester or
full-time load of a faculty member is in the range of 15 units to 24 term basis.  In the absence of a specific agreement on the period... of
units a semester or term, depending on the courses taught.  the contract of employment, it is presumed to be for a term or
Part-time instructors carry a load of not more than 12 units.[9] semester.  After the end of each term or semester, the school does
not have any obligation to give teaching load to each and every part-
The evidence on record reveals that, except for four non-consecutive time teacher
terms, respondent generally carried a load of twelve units or less
from 1992 to 1999. That petitioner did not give any teaching assignment... to the
respondent during a given term or semester, even if factually true,
There is also no evidence that he performed other functions for the did not amount to an actionable violation of respondent's rights.  It
school when not teaching.  These give the... impression that he was did not amount to illegal dismissal of the part-time teacher.
merely a part-time teacher.[10] Although this is not conclusive since
G.R. No. 170388 : September 4, 2013 SC.

COLEGIO DEL SANTISIMO ROSARIO AND SR. ZENAIDA S. MOFADA, ISSUE: Whether or not respondent has become a permanent
OP, Petitioners, v. EMMANUEL ROJO, Respondent. employee upon three years of service

DEL CASTILLO,J.: HELD: Yes. CA decision affirmed.

FACTS: Labor Law- Manual of Regulations for Private Schools (the Manual)
in relation to the Labor Code
Petitioner Colegio del Santisimo Rosario (CSR) hired respondent as a
high school teacher on probationary basis for the school years 1992- In Mercado v. AMA Computer College-Paraque City, Inc.,we had
1995. On April 5, 1995, CSR, through petitioner Sr. Zenaida S. Mofada, occasion to rule that cases dealing with employment on probationary
OP (Mofada), decided not to renew respondents services. status of teaching personnel are not governed solely by the Labor
Code as the law is supplemented, with respect to the period of
Respondent filed a Complaint for illegal dismissal. He alleged that probation, by special rules found in the Manual of Regulations for
since he had served three consecutive school years which is the Private Schools (the Manual). With regard to the probationary period,
maximum number of terms allowed for probationary employment, he Section 92 of the 1992 Manual provides
should be extended permanent employment. Citing paragraph 75 of
the 1970 Manual of Regulations for Private Schools (1970 Manual),
respondent asserted that "full- time teachers who have rendered
Section 92. Probationary Period. Subject in all instances to compliance
three (3) consecutive years of satisfactory services shall be considered
with the Department and school requirements, the probationary
permanent."
period for academic personnel shall not be more than three (3)
consecutive years of satisfactory service for those in the elementary
On the other hand, petitioners argued that respondent knew that his
and secondary levels, six (6) consecutive regular semesters of
Teachers Contract for school year 1994-1995 with CSR would expire
satisfactory service for those in the tertiary level, and nine (9)
on March 31, 1995.Accordingly, respondent was not dismissed but his
consecutive trimesters of satisfactory service for those in the tertiary
probationary contract merely expired and was not renewed.
level where collegiate courses are offered on a trimester basis.
Petitioners also claimed that the "three years" mentioned in
paragraph 75 of the 1970 Manual refer to "36 months," not three
school years.And since respondent served for only three school years However, this scheme "of fixed-term contract is a system that
of 10 months each or 30 months, then he had not yet served the operates during the probationary period and for this reason is subject
"three years" or 36 months mentioned in paragraph 75 of the 1970 to Article 281 of the Labor Code," which provides-
Manual. x x x The services of an employee who has been engaged on a
probationary basis may be terminated for a just cause or when he
fails to qualify as a regular employee in accordance with reasonable
LA ruled in favor of respondent. The decision was affirmed by the
standards made known by the employer to the employee at the time
NLRC and the CA respectively on appeal hence this petition before the
of his engagement. An employee who is allowed to work after a It should be pointed out that absent any showing of unsatisfactory
probationary period shall be considered a regular employee. performance on the part of respondent, it can be presumed that his
performance was satisfactory, especially taking into consideration the
fact that even while he was still more than a year into his
However, for teachers on probationary employment, in which case a
probationary employment, he was already designated Prefect of
fixed term contract is not specifically used for the fixed term it offers,
Discipline. In such capacity, he was able to uncover the existence of a
it is incumbent upon the school to have not only set reasonable
drug syndicate within the school and lessen the incidence of drug use
standards to be followed by said teachers in determining qualification
therein. Yet despite respondent's substantial contribution to the
for regular employment, the same must have also been
school, petitioners chose to disregard the same and instead
communicated to the teachers at the start of the probationary period,
terminated his services; while most of those who were involved in
or at the very least, at the start of the period when they were to be
drug activities within the school were punished with a slap on the
applied. Corollarily, should the teachers not have been apprised of
wrist as they were merely made to write letters promising that the
such reasonable standards at the time specified above, they shall be
incident will not happen again.
deemed regular employees.
PETITION DENIED.

In this case, glaringly absent from petitioner's evidence are the

reasonable standards that respondent was expected to meet that
could have served as proper guidelines for purposes of evaluating his
performance. Nowhere in the Teacher's Contract could such
standards be found.Neither was it mentioned that the same were
ever conveyed to respondent. Even assuming that respondent failed
to meet the standards set forth by CSR and made known to the
former at the time he was engaged as a teacher on probationary
status, still, the termination was flawed for failure to give the required
notice to respondent.

Curiously, despite the absence of standards, Mofada mentioned the

existence of alleged performance evaluations in respondent's case.
We are, however, in a quandary as to what could have been the basis
of such evaluation, as no evidence were adduced to show the
reasonable standards with which respondents performance was to be
assessed or that he was informed thereof. Notably too, none of the
supposed performance evaluations were presented. These flaws
violated respondent's right to due process. As such, his dismissal is,
for all intents and purposes, illegal.
G.R. No. 193493 : June 13, 2013 the death of her husband.

JAIME N. GAPAYAO, Petitioner v. ROSARIO FULO, SOCIAL SECURITY Petitioner claims that the deceased was not a former employee, but
SYSTEM and SOCIAL SECURITY COMMISSION,Respondents was an independent contractor whose tasks were not subject to
petitioners control and supervision. Hence, petitioner was under no
SERENO, CJ.: obligation to report the formers demise to the SSS.

FACTS: SSS filed a petition- in- intervention before the SSC. SSC rendered a
resolution finding Jaime Fulo to be employed by respondent Gapayao
Jaime Fulo died of acute renal failure secondary to 1st degree burn and hereby ordering them to pay the unpaid SSS contributions on
70% secondary electrocution while doing repairs at the residence and behalf of deceased Jaime Fulo. SSS was also directed by the SSC to
business establishment of petitioner at Sorsogon. pay Rosario Fulo the death benefit.

Petitioner appealed to the CA who ruled in favor of private

Allegedly moved by his Christian faith, petitioner extended some
respondent and affirmed the previous decision.
financial assistance to private respondent. The latter executed an
Affidavit of Desistance stating that she was not holding them liable for
ISSUE: Whether or not there exists an employer-employee relationship
the death of her late husband, Jaime Fulo, and was thereby waiving
that would merit an award of benefits
her right and desisting from filing any criminal or civil action against
petitioner.
HELD: Court of Appeals decision is affirmed.
Farm workers generally fall under the definition of seasonal
Both parties executed a compromise agreement, whereby 40,000
employees. We have consistently held that seasonal employees may
pesos was given to the surviving spouse. Thereafter, private
be considered as regular employees. Regular seasonal employees are
respondent filed a claim for social security benefits with the SSS.
those called to work from time to time. The nature of their
However, it was discovered that the deceased was not a registered
relationship with the employer is such that during the off-season,
member of the SSS. Private respondent insisted that her late husband
they are temporarily laid off; but re-employed during the summer
had been employed by petitioner from January 1983 up to his
season or when their services may be needed. They are in regular
untimely death on November 4, 1997.
employment because of the nature of their job, and not because of
the length of time they have worked.
Consequently, SSS demanded that petitioner remit the social security
contributions of the deceased. Petitioner denied that the deceased
The rule, however, is not absolute. For regular employees to be
was hs employee, SSS required private respondent to present
considered as such, the primary standard used is the reasonable
evidence to refute petitioners allegations.
connection between the particular activity they perform and the
usual trade or business of the employer.
Instead of presenting evidence, respondent filed a petition before the
SSC. In her petition, she sough social security coverage and payment
The test is whether the former is usually necessary or desirable in the
of contributions in order to avail herself of the benefits accruing from
usual business or trade of the employer. The connection can be deceased in the discharge of his functions. Being the owner of the
determined by considering the nature of the work performed and its farm, petitioner necessarily had the right to review the quality of
relation t the scheme of the particular business in its entirety. Also if work produced by his laborers. It matters not whether the deceased
the employee has been performing the job for at least one year, even conducted his work inside petitioners farm or not because petitioner
if the performance is not continuous or merely intermittent, the law retained the right to control him in his work, and in fact exercised it
deems that repeated and continuing need for its performance as through his farm manager Amado Gacelo. The latte himself testified
sufficient evidence of the necessity if not indispensability of that that petitioner had hired the deceased as one of the pakyaw workers
activity to the business. Hence, the employment is also considered whose salaries were derived from the gross proceeds of the harvest.
regular, but only wit respect to such activity and while such activity
exists. Petitioner entered into the agreement with full knowledge that he
was described as the employer of the deceased. This knowledge
A reading of the records reveals that the deceased was indeed a farm cannot simply be denied by a statement that petitioner was merely
worker who was in the regular employ of petitioner. From year to forced into such an agreement.
year, starting January 1983 up until his death, the deceased has been
working on petitioners land by harvesting abaca and coconut, The right of an employee to be covered by the Social Security Act is
processing copra, and clearing weeds. His employment was premised on the existence of an employer-employee relationship.
continuous in the sence that it was done for more than one
harvesting season. Moreover, no amount of reasoning could detract DENIED
from the fact that these tasks were necessary in the usual business of
petitioner.

As found by the SSC, the deceased was a construction worker in the

building and helper in the bakery, grocery, hardware, and piggery- all
owned by petitioner. This fact only proves that even during the off
season, the deceased was still in the employ of petitioner.

Petitioners further alleged that he was merely a pakyaw worker, but

even so, they may still be considered as employees as long as the
employers exercise control over them. The power of the employer to
control the work of the employee is considered that most significant
determinant of the existence of an employer-employee relationship.
This is the so-called control test. It is not essential that the employer
actually supervise the performance of duties by the employee. It is
enough that the former has a right to wield the power.

We agree with the CA that petitioner wielded control over the

UNIVERSAL ROBINA V. ACIBO (G.R. NO. 186439; JANUARY 15, 2014) Petitioners elevated the case to the Court of Appeals (CA) via a
petition for certiorari.
FACTS: URSUMCO is a domestic corporation engaged in the
sugarcane milling business; Cabati is URSUMCOs Business Unit
The CA granted in part the petition. It pointed out that the primary
General Manager.
standard for determining regular employment is the reasonable
connection between a particular activity performed by the employee
The complainants were employees of URSUMCO, and were hired on
vis-vis the usual trade or business of the employer. As the
various dates between 1988 and 1996, and on different capacities,
complainants have been performing their respective tasks for at least
i.e., drivers, crane operators, bucket hookers, welders, mechanics,
one year, these same tasks, regardless of whether the performance
laboratory attendants and aides, steel workers, carpenters, among
was continuous or intermittent, constitutes sufficient evidence of the
others. The complainants signed contracts of employment for a
necessity, if not indispensability, of the activity to URSUMCOs
period of 1 month or for a given season, and were repeatedly hired to
business. On the claim for CBA benefits, however, the CA ruled that
perform the same duties and, for every engagement, were required
the complainants were not entitled to receive them. CA pointed out
to sign new employment contracts for the same duration of one
that the CBA covered regular employees of URSUMCO performing
month or given season.
tasks needed by the latter for the entire year with no regard to the
On August 23, 2002, the complainants filed before the Labor Arbiter changing sugar milling season. For collective bargaining purposes,
complaints for regularization, entitlement to the benefits under the they constitute a bargaining unit separate and distinct from the
existing Collective Bargaining Agreement (CBA), and attorneys fees. regular employees.
The Labor Arbiter dismissed the complaint in the decision dated
October 9, 2002, for lack of merit. The Labor Arbiter pointed out that The petitioner filed a petition for review on certiorari after the CA
the complainants were required to perform several projects that denied their motion for partial reconsideration.
were not at all directly related to URSUMCOs main operations, and ISSUE: Are respondents regular employees of URSUMCO?
that they were project employees, they could not be regularized since
their respective employments end upon the completion of each HELD: Respondents are regular seasonal employees of URSUMCO.
project. Also, complainants were not entitled to the benefits granted
Article 280 of the Labor Code provides for three kinds of
under the CBA that, as provided, covered only the regular employees
employment arrangements, namely: regular, project/seasonal and
of URSUMCO.
casual.
7, out of the 22 original complainants, appealed the Labor Arbiters Regular employment refers to that arrangement whereby the
ruling before the NLRC. NLRC reversed the Labor Arbiter's ruling; it employee has been engaged to perform activities which are usually
declared the complainants are regular URSUMCO employees because necessary or desirable in the usual business or trade of the employer.
they performed activities which were usually necessary and desirable By way of an exception, paragraph 2, Article 280 of the Labor Code
in the usual trade or business of URSUMCO, and granted their also considers regular a casual employment arrangement when the
monetary claims under the CBA. NLRC denied petitioners motion for casual employees engagement has lasted for at least one year,
reconsideration. regardless of the engagements continuity. The controlling test in this
arrangement is the length of time during which the employee is smooth and continuous operation of the mill for the duration of the
engaged. milling season, as distinguished from the production of the sugarcane
which involves the planting and raising of the sugarcane until it ripens
for milling. They perform activities that are necessary and desirable in
Project employment, on the other hand, contemplates on
sugarcane production. Also, the respondents were regularly and
arrangement whereby the employment has been fixed for a specific
repeatedly hired to perform the same tasks year after year. This
project or undertaking whose completion or termination has been
regular and repeated hiring of the same workers (two different sets)
determined at the time of the engagement of the employee. The
for two separate seasons has put in place, principally through
services of the project employees are legally and automatically
jurisprudence, the system of regular seasonal employment in the
terminated upon the end or completion of the project as the
sugar industry and other industries with a similar nature of
employees services are coterminous with the project.
operations.
Seasonal employment operates much in the same way as project
Therefore, the nature of the employment does not depend solely on
employment, albeit it involves work or service that is seasonal in
the will or word of the employer or on the procedure for hiring and
nature or lasting for the duration of the season. To exclude the
the manner of designating the employee. Rather, the nature of the
asserted seasonal employee from those classified as regular
employment depends on the nature of the activities to be performed
employees, the employer must show that: (1) the employee must be
by the employee, considering the nature of the employers business,
performing work or services that are seasonal in nature; and (2) he
the duration and scope to be done, and, in some cases, even the
had been employed for the duration of the season. Hence, when the
length of time of the performance and its continued existence.
seasonal workers are continuously and repeatedly hired to perform
the same tasks or activities for several seasons or even after the
The NLRC acted in grave abuse of discretion when it declared the
cessation of the season, this length of time may likewise serve as
respondents regular employees of URSUMCO without qualification
badge of regular employment.
and that they were entitled to the benefits granted under the CBA, to
URSUMCO's regular employees. We also find that the CA grossly
Casual employment refers to any other employment arrangement
misread the NLRC ruling and missed the implications of the
that does not fall under any of the first two categories.
respondents regularization. To reiterate, the respondents are regular
seasonal employees, as the CA itself opined when it declared that
In the case at bar, the respondents were made to perform various
private respondents who are regular workers with respect to their
tasks that did not at all pertain to any specific phase of URSUMCO's
seasonal tasks or activities and while such activities exist, cannot
strict milling operations that would ultimately cease upon completion
automatically be governed by the CBA between petitioner URSUMCO
of a particular phase in the milling of sugar; rather, they were tasked
and the authorized bargaining representative of the regular and
to perform duties regularly and habitually needed in URSUMCO's
permanent employees. PARTIALLY GRANTED.
operations during the milling season. The respondents duties as
loader operators, hookers, crane operators and drivers were
necessary to haul and transport the sugarcane from the plantation to
the mill; laboratory attendants, workers and laborers to mill the
sugar; and welders, carpenters and utility workers to ensure the
CASE DIGEST: ABBOTT LABORATORIES, PHILIPPINES, CECILLE A.
TERRIBLE, EDWIN D. FEIST, MARIA OLIVIA T. YABUTMISA, TERESITA Alcaraz was called to a meeting with Walsh and Terrible, Abbotts
C. BERNARDO, AND ALLAN G. ALMAZAR, Petitioners, vs. PEARLIE former HR Director, where she was informed that she failed to meet
ANN F. ALCARAZ, Respondent.  (G.R. No. 192571; July 23, 2013) the regularization standards for the position of Regulatory Affairs
Manager. Walsh, Almazar, and Bernardo personally handed to Alcaraz
FACTS: Petitioner Abbott Laboratories, Philippines (Abbott) caused a letter stating that her services had been terminated effective May
the publication in a major broadsheet newspaper of its need for a 19, 2005. The letter detailed the reasons for Alcarazs termination.
Medical and Regulatory Affairs Manager. Alcaraz - who was then a Alcaraz felt that she was unjustly terminated from her employment
Regulatory Affairs and Information Manager at Aventis Pasteur and thus, filed a complaint for illegal dismissal and damages against
Philippines, Incorporated (another pharmaceutical company like Abbott and its officers, namely, Misa, Bernardo, Almazar, Walsh,
Abbott) showed interest and submitted her application. Terrible, and Feist. She claimed that she should have already been
considered as a regular and not a probationary employee given
In Abbotts offer sheet, it was stated that Alcaraz was to be employed
Abbotts failure to inform her of the reasonable standards for her
on a probationary basis. Later that day, she accepted the said offer
regularization upon her engagement as required under Article 295of
and received an electronic mail (e-mail) from Abbotts Recruitment
the Labor Code.
Officer, petitioner Teresita C. Bernardo (Bernardo), confirming the
same. Attached to Bernardos e-mail were Abbotts organizational
chart and a job description of Alcarazs work. LA dismissed Alcarazs complaint for lack of merit. The LA rejected
Alcarazs argument that she was not informed of the reasonable
During Alcarazs pre-employment orientation, petitioner Allan G. standards to qualify as a regular employee. The NLRC reversed the
Almazar (Almazar), Hospiras Country Transition Manager, briefed her findings of the LA and ruled that there was no evidence showing that
on her duties and responsibilities as Regulatory Affairs Manager. Alcaraz had been apprised of her probationary status and the
Petitioner Kelly Walsh (Walsh), Manager of the Literature Drug requirements which she should have complied with in order to be a
Surveillance Drug Safety of Hospira, will be her immediate supervisor. regular employee. On appeal, CA affirmed the NLRC decision. Hence,
Petitioner Maria Olivia T. Yabut-Misa (Misa), Abbotts Human this petition.
Resources (HR) Director, sent Alcaraz an e-mail which contained an
explanation of the procedure for evaluating the performance of ISSUE: Was Alcaraz illegally dismissed?
probationary employees.
HELD: The probationary employee may also be terminated for
failure to qualify as a regular employee in accordance with the
During the course of her employment, Alcaraz noticed that some of
reasonable standards made known by the employer to the
the staff had disciplinary problems. Thus, she would reprimand them
employee at the time of the engagement.
for their unprofessional behavior such as non-observance of the dress
code, moonlighting, and disrespect of Abbott officers. However,
A probationary employee, like a regular employee, enjoys security of
Alcarazs method of management was considered by Walsh to be "too
tenure. However, in cases of probationary employment, aside from
strict."
just or authorized causes of termination, an additional ground is
provided under Article 295 of the Labor Code, i.e., the probationary
employee may also be terminated for failure to qualify as a regular
employee in accordance with the reasonable standards made known Considering the totality of the above-stated circumstances, it cannot,
by the employer to the employee at the time of the engagement. therefore, be doubted that Alcaraz was well-aware that her
Thus, the services of an employee who has been engaged on regularization would depend on her ability and capacity to fulfill the
probationary basis may be terminated for any of the following: (a) a requirements of her position as Regulatory Affairs Manager and that
just or (b) an authorized cause; and (c) when he fails to qualify as a her failure to perform such would give Abbott a valid cause to
regular employee in accordance with reasonable standards terminate her probationary employment.
prescribed by the employer.
An employer who terminates an employee for a valid cause but
does so through invalid procedure is liable to pay the latter nominal
A punctilious examination of the records reveals that Abbott had
damages.
indeed complied with the above-stated requirements. This conclusion
is largely impelled by the fact that Abbott clearly conveyed to Alcaraz
Despite the existence of a sufficient ground to terminate Alcarazs
her duties and responsibilities as Regulatory Affairs Manager prior to,
employment and Abbotts compliance with the Labor Code
during the time of her engagement, and the incipient stages of her
termination procedure, it is readily apparent that Abbott breached its
employment. On this score, the Court finds it apt to detail not only
contractual obligation to Alcaraz when it failed to abide by its own
the incidents which point out to the efforts made by Abbott but also
procedure in evaluating the performance of a probationary employee.
those circumstances which would show that Alcaraz was well-
apprised of her employers expectations that would, in turn,
determine her regularization.
Records show that Abbotts PPSE procedure mandates, inter alia, that
Abbott caused the publication in a major broadsheet newspaper of its the job performance of a probationary employee should be formally
need for a Regulatory Affairs Manager, indicating therein the job reviewed and discussed with the employee at least twice: first on the
description for as well as the duties and responsibilities attendant to third month and second on the fifth month from the date of
the aforesaid position. In Abbotts December 7, 2004 offer sheet, it employment. Abbott is also required to come up with a Performance
was stated that Alcaraz was to be employed on a probationary status. Improvement Plan during the third month review to bridge the gap
On the day Alcaraz accepted Abbotts employment offer, Bernardo between the employees performance and the standards set, if any. In
sent her copies of Abbotts organizational structure and her job addition, a signed copy of the PPSE form should be submitted to
description through e-mail. Alcaraz was made to undergo a pre- Abbotts HRD as the same would serve as basis for recommending the
employment orientation where Almazar informed her that she had to confirmation or termination of the probationary employment.
implement Abbotts Code of Conduct and office policies on human
resources and finance and that she would be reporting directly to In this case, it is apparent that Abbott failed to follow the above-
Walsh. Alcaraz received copies of Abbotts Code of Conduct and stated procedure in evaluating Alcaraz. For one, there lies a hiatus of
Performance Modules from Misa who explained to her the procedure evidence that a signed copy of Alcarazs PPSE form was submitted to
for evaluating the performance of probationary employees; she was the HRD. It was not even shown that a PPSE form was completed to
further notified that Abbott had only one evaluation system for all of formally assess her performance. Neither was the performance
its employees. evaluation discussed with her during the third and fifth months of her
employment. Nor did Abbott come up with the necessary
Performance Improvement Plan to properly gauge Alcarazs
performance with the set company standards.

In this light, while there lies due cause to terminate Alcarazs

probationary employment for her failure to meet the standards
required for her regularization, and while it must be further pointed
out that Abbott had satisfied its statutory duty to serve a written
notice of termination, the fact that it violated its own company
procedure renders the termination of Alcarazs employment
procedurally infirm, warranting the payment of nominal damages. A
further exposition is apropos. GRANTED
PAZ VS NORTHERN TOBACCO Relations Commission modified the Labor Arbiter’s Decision. The
Court of Appeals dismissed the Petition and modified the National
FACTS:
Labor Relations Commission’s Decision in that financial assistance is
Northern Tobacco Redrying Co., Inc., a flue-curing and redrying of awarded to Zenaida Paz in the amount of P60,356.25”.
tobacco leaves business, employs approximately 100 employees with
The Court of Appeals found that while applying the clear text of
seasonal workers “tasked to sort, process, store and transport
Article 287 resulted in the amount of P12,487.50 as retirement pay,
tobacco leaves during the tobacco season of March to September.”
this amount was so meager that it could hardly support Paz, now that
NTRCI hired Zenaida Paz sometime in 1974 as a seasonal sorter, paid she is weak and old, unable to find employment. It discussed
P185.00 daily. NTRCI regularly re-hired her every tobacco season jurisprudence on financial assistance and deemed it appropriate to
since then. She signed a seasonal job contract at the start of her apply the formula: One-half-month pay multiplied by 29 years of
employment and a pro-forma application letter prepared by NTRCI in service divided by two yielded P60,356.25 as Paz’s retirement pay.
order to qualify for the next season. Paz comes before this court seeking to reinstate the National Labor
Relations Commission’s computation. NTRCI filed its Comment and
On May 18, 2003, Paz was 63 years old when NTRCI informed her that this court deemed waived the filing of a Reply.
she was considered retired under company policy. A year later, NTRCI
told her she would receive P12,000.00 as retirement pay. Paz, with ISSUE:
two other complainants, filed a Complaint for illegal dismissal against
Whether or not the amendment of a complaint for illegal dismissal
NTRCI on March 4, 2004. She amended her Complaint on April 27,
seeking separation pay into one for payment of retirement pay
2004 into a Complaint for payment of retirement benefits, damages,
precludes complaint for illegal dismissal.
and attorney’s fees as P12,000.00 seemed inadequate for her 29
years of service. RULING:
The Complaint impleaded NTRCI’s Plant Manager, Angelo Ang, as Petitioner Paz’s amendment of her Complaint was not fatal to her
respondent. The Complaint was part of the consolidated Complaints cause of action for illegal dismissal.
of 17 NTRCI workers.
First, petitioner Paz never abandoned her argument that she had not
NTRCI countered that no Collective Bargaining Agreement existed reached the compulsory retirement age of 65 pursuant to Article 287,
between NTRCI and its workers. Thus, it computed the retirement pay as amended, when respondent NTRCI made her retire on May 18,
of its seasonal workers based on Article 287 of the Labor Code. NTRCI 2003.
raised the requirement of at least six months of service a year for that
Second, the National Labor Relations Commission found that
year to be considered in the retirement pay computation. It claimed
respondent NTRCI failed to prove a valid company retirement policy,
that Paz only worked for at least six months in 1995, 1999, and 2000
yet it required its workers to retire after they had reached the age of
out of the 29 years she rendered service. Thus, Paz’s retirement pay
60. The Court of Appeals also discussed that while respondent NTRCI
amounted to P12,487.50 after multiplying her P185.00 daily salary by
produced guidelines on its retirement policy for seasonal employees,
22½ working days in a month, for three years.
it never submitted a copy of its Collective Bargaining Agreement and
The Labor Arbiter in his Decision confirmed that the correct even alleged in its Position Paper that none existed. Petitioner Paz
retirement pay of Zenaida M. Paz was P12,487.50. The National Labor was only 63 years old on May 18, 2003 with two more years
remaining before she would reach the compulsory retirement age of the amount of P22,200.00 computed by multiplying P185.00 by 20
65. days, then by three months, then by two years.
Retirement is the result of a bilateral act of the parties, a voluntary
agreement between the employer and the employee whereby the
latter, after reaching a certain age, agrees to sever his or her
employment with the former. Article 287, as amended, allows for
optional retirement at the age of at least 60 years old.
Consequently, if “the intent to retire is not clearly established or if the
retirement is involuntary, it is to be treated as a discharge.”
The National Labor Relations Commission considered petitioner Paz’s
amendment of her Complaint on April 27, 2004 akin to an optional
retirement when it determined her as illegally dismissed from May
18, 2003 to April 27, 2004, thus being entitled to full backwages from
May 19, 2003 until April 26, 2004.
Again, petitioner Paz never abandoned her argument of illegal
dismissal despite the amendment of her Complaint. This implied lack
of intent to retire until she reached the compulsory age of 65. Thus,
she should be considered as illegally dismissed from May 18, 2003
until she reached the compulsory retirement age of 65 in 2005 and
should be entitled to full backwages for this period.
An award of full backwages is “inclusive of allowances and other
benefits or their monetary equivalent, from the time their actual
compensation was withheld”.
Backwages, considered as actual damages, requires proof of the loss
suffered. The Court of Appeals found “no positive proof of the total
number of months that she actually rendered work.”
Nevertheless, petitioner Paz’s daily pay of P185.00 was established.
She also alleged that her employment periods ranged from three to
seven months.
Since the exact number of days petitioner Paz would have worked
between May 18, 2003 until she would turn 65 in 2005 could not be
determined with specificity, this court thus awards full backwages in
PHILIPPINE NATIONAL OIL COMPANY-ENERGY DEVELOPMENT subject to confirmation by your immediate superior based on your
CORPORATION AND/OR PAUL AQUINO & ESTER R. GUERZON v. performance during the next six months.
AMELYN A. BUENVIAJE, GR Nos. 183200-01, 2016-06-29
or record purposes, please... take note that your regular status is
Facts: retroactive to July 1, 2001. This date will be used for the computation
of your service credits, retirement and other company benefits
Philippine National Oil Company-Energy Development Corporation
allowed under company policy.[13]
(PNOC-EDC) hired Amelyn Buenviaje (Buenviaje) as Assistant to the
then Chairman/President and Chief Executive Officer Sergio A.F. In line with PNOC-EDCs policies, Buenviaje was subjected to a
Apostol (Apostol), her father. Buenviaje's employment contract performance appraisal during the first week of May 2004.[15] She
provided that she will... serve until June 30, 2004 or co-terminous received a satisfactory grade of three (3).[16] In her subsequent
with the tenure of Apostol, whichever comes first.[6] performance appraisal covering the period... of May 1, 2004 to June
30, 2004, she received an unsatisfactory grade of four (4).[17] Thus,
On August 4, 2003, Apostol approved the creation of PNOC-EDC's new
Ester Guerzon (Guerzon), Vice President for Corporate Affairs of
Marketing Division composed of thirty (30) positions. Seven (7) of
PNOC-EDC, informed Buenviaje that she did not qualify for regular
these thirty (30) positions were also newly created,[7] one of which
employment.[18] PNOC-EDC, through Guerzon, communicated in
was that of a Marketing Division Manager.[8] Buenviaje assumed this
writing to Buenviaje her non-confirmation of appointment as well as
position as early as the time of the creation of the Marketing Division.
her separation from the company effective July 31, 2004.
[9]
In reply, PNOC-EDC sent her two (2) more letters reiterating her non-
On January 5, 2004, Apostol filed his Certificate of Candidacy as
confirmation and separation from the company.[21] Aquino also
Governor for the province of Leyte, yet continued to discharge his
issued a Memorandum to Buenviaje instructing her to prepare a...
functions as President in PNOC-EDC.[10] Buenviaje also continued to
turnover report before her physical move-out.[22]
perform her duties as Assistant to the
Buenviaje responded by filing a complaint before the Labor Arbiter
Chairman/President and Marketing Division Manager in PNOC-EDC.
for illegal dismissal, unpaid 13th month pay, illegal deduction with
[11]
claim for moral as well as exemplary damages, including attorney's
On February 2, 2004, Paul Aquino (Aquino), the new President of fees and backwages.[23]
PNOC-EDC, appointed Buenviaje to the position of Senior Manager for
The Labor Arbiter rendered a decision in favor of Buenviaje, the
Marketing Division effective February 1, 2004.
dispositive portion of which states:
The appointment letter partly provides:
WHEREFORE, premises considered, judgment is hereby rendered
By copy of this letter, HRMD [Human Resources Management declaring complainant a regular employee. As a consequence thereof,
Division] is instructed to amend your present employment status her dismissal without any basis is hereby deemed illegal
from your present position as Assistant to the President (co-terminus)
The Labor Arbiter held that Buenviaje was a regular employee
to regular status and as such you will be entitled to all the rights and...
because her appointment letter clearly says so. Any doubt caused by
privileges granted to your new position under the company's benefit
the statement in the appointment letter that Buenviaje's
policies subject to existing rules and regulations. This appointment is
appointment was subject to confirmation must be resolved against
PNOC-EDC. In addition,... PNOC-EDC failed to prove that reasonable every year of service (with a fraction of at least 6 months considered
standards were explained to Buenviaje at the time of her one whole year) in lieu of reinstatement. In addition she is also to...
engagement, thusly negating PNOC-EDC's claim that she was merely a receive full backwages inclusive of allowances and other benefits or
probationary employee their monetary equivalent, computed from the time the
compensation was withheld up to the finality of this decision.
The Labor Arbiter noted that PNOC-EDC even admitted that the
alleged standards were only... set and discussed with Buenviaje more The other awards in the NLRC d
than a month after her actual appointmen... he Labor Arbiter further
The CA found no reason to disturb the findings of both the Labor
ruled that PNOC-EDC also failed to explain why Buenviaje was allowed
Arbiter and the NLRC that Buenviaje was a regular employee of
to enjoy benefits that were supposed to be exclusive for regular
PNOC-EDC. However, it disagreed with the NLRC's ruling that
employees.
Buenviaje failed to acquire security of tenure. The CA stated that
In its Resolution[28] dated September 27, 2005, the NLRC ruled: where an employee has... been engaged to perform activities which
are usually necessary or desirable in the usual business of the
WHEREFORE, premises considered, the appeal is partly GRANTED and
employer, such employee is deemed a regular employee and is
the Decision dated 10 December 2004 is hereby MODIFIED ordering
entitled to security of tenure notwithstanding the contrary provisions
respondent-appellant PNOC-Energy Development Corporation to pay
of his contract of employment.[39
complainant-appellee financial assistance in the amount of
Issues:
P229,681.35 only and her accrued wages in the amount of
P1,224,967.28 for the period covering December 2004, the date of Whether Buenviaje was a permanent employee;
the decision ordering her reinstatement until the date of this
Whether Buenviaje was illegally dismissed;
Resolution.
Ruling:
the award of moral and exemplary damages and attorney's fees, as
well as the joint and solidarily (sic) liability of individual respondents Buenviaje was a permanent employee
Paul A. Aquino and Ester R. Guerzon are hereby
Buenviaje was hired as a Marketing Division Manager, a position that
DELETED. performs activities that are usually necessary and desirable to the
business of PNOC-EDC and is thusly, regular. As an employer, PNOC-
The NLRC agreed with the Labor Arbiter that Buenviaje was a regular
EDC has an exclusive management prerogative to hire someone for
employee of PNOC-EDC, noting that the terms of her appointment
the... position, either on a permanent status right from the start or
expressly grants a regular status of employmen
place him first on probation. In either case, the employee's right to
Nevertheless, the NLRC ruled that she was not illegally dismissed security of tenure immediately attaches at the time of hiring.[41] As a
because she did not enjoy security of... tenure permanent employee, he may only be validly dismissed... for a
just[42] or authorized[43] cause. As a probationary employee, he may
The CA partially modified the Resolution of the NLRC
also be validly dismissed for a just or authorized cause, or when he
For having been illegally dismissed, petitioner Amelyn Buenviaje is fails to qualify as a regular employee in accordance with reasonable
entitled to receive a separation pay equivalent to 1/2 month pay for
standards made known... to him by the employer at the time of his was well within its rights not to confirm her appointment and to
engagement.[ dismiss her.
Here, PNOC-EDC exercised its prerogative to hire Buenviaje as a We are not persuaded.
permanent employee right from the start or on February 1, 2004, the
Firstly, if the clause in the appointment letter did cause an ambiguity
effectivity date of her appointment. In her appointment letter, PNOC-
in the employment status of Buenviaje, we hold that the ambiguity
EDC's President expressly instructed the HRMD to amend Buenviaje's
should be resolved in her favor. This is in line with the policy under
status from... co-terminous to regular. He also informed her that her
our Labor Code to afford protection to labor and to construe doubts
regular status shall be retroactive to July 1, 2001. Nowhere in the
in... favor of labor
appointment letter did PNOC-EDC say that Buenviaje was being hired
on probationary status Hence, what would be more favorable to Buenviaje would be to
accord her a permanent status.
Upon evaluation on two (2) occasions, PNOC-EDC used a
performance... appraisal form intended for permanent managerial But more importantly, apart from the express intention in her
employees, even if the company had a form for probationary appointment letter, there is substantial evidence to prove that
employees. The intention, therefore, all along was to grant Buenviaje Buenviaje was a permanent employee and not a probationary one.
regular or permanent employment
A probationary employee is defined as one who is on trial by an
As correctly observed by the CA: employer during which the employer determines whether or not he is
qualified for permanent employment.[50] In general, probationary
Accordingly, at the time of her formal appointment to the position on
employment cannot exceed six (6) months, otherwise the... employee
February 2, 2004, Amelyn Buenviaje has been performing the
concerned shall be considered a regular employee.[51] It is also
functions of a Senior Manager of the Marketing Division for almost six
indispensable in probationary employment that the employer informs
months. After having had the opportunity to observe her
the employee of the reasonable standards that will be used as a basis
performance... for almost six months as Senior Marketing Manager,
for his or her regularization at the time of... his or her engagement.
PNOC should not have formally appointed her if she appeared to have
[52] If the employer fails to comply with this, then the employee is
been unqualified for the position. But as it is, Amelyn Buenviaje was
considered a regular employee.[53]
formally appointed and given a regular status. x x x[46]
In their reply to Buenviaje dated July 28, 2004, PNOC-EDC reminded
This intention was clear notwithstanding the clause in the
Buenviaje that the standards "were thoroughly discussed with [her]
appointment letter saying that Buenviaje's appointment was subject
separately soon alter [she] signed [her] contract, as well as that which
to confirmation by her immediate superior based on her performance
was contained in the job description attached thereto."[54] PNOC-
during the next six (6) months. This clause did not make her
EDC maintained this position in its appeal memorandum,[55]
regularization... conditional, but rather, effectively informed
asserting that Buenviaje was apprised of the reasonable standards for
Buenviaje that her work performance will be evaluated later on.
regularization by virtue of the job description attached to her
PNOC-EDC, on the other hand, insists that this clause demonstrates appointment.[56] They... also alleged that the standards were
that Buenviaje was merely a probationary employee. Consequently, discussed with Buenviaje prior to her first and second appraisals.[57]
when she failed to meet the standards... set by PNOC-EDC, the latter
We, however, do not find these circumstances sufficient to categorize merely contains her job identification, her immediate superior and
Buenviaje as a probationary employee. subordinates, a list of her job objectives, duties and responsibilities,
and the qualification guidelines required of her position (i.e.,
In Abbott Laboratories, Philippines v. Alcaraz,[58] we were confronted
minimum education,... minimum experience, and special skills)... here
with the similar question of whether Alcaraz was sufficiently informed
is no question that performance of duties and responsibilities is a
of the reasonable standards that would qualify her as a regular
necessary standard for qualifying for regular employment. It does not
employee. In affirming that she was, we... enumerated the details and
stop on mere performance, however. There must be a measure as to
circumstances prior to, during the time of her engagement, and the
how poor, fair, satisfactory,... or excellent the performance has been.
incipient stages of her employment that show she was well-apprised
PNOC-EDC, in fact, used an appraisal form when it evaluated the
of her employer's expectations that would, in turn, determine her
performance of Buenviaje twice
regularization.
A copy of this appraisal form, unlike in Abbot, was not given to
We concluded that "[c]onsidering the totality of the above-stated
Buenviaje at any time prior to, during the time of her engagement,
circumstances, it cannot, therefore, be doubted that Alcaraz was well-
and the... incipient stages of her employment. A comparison of the
aware that her regularization would depend on her ability and
job description and the standards in the appraisal form reveals that
capacity to fulfill the requirements of her position as Regulatory
they are distinct
Affairs
The job description is just that, an enumeration of the duties and
Manager and that her failure to perform such would give Abbott a
responsibilities of Buenviaje. To better illustrate, the job... objectives,
valid cause to terminate her probationary employment."[60]
duties and responsibilities of Buenviaje are set out below:
We stress here that the receipt by Buenviaje of her job description
The foregoing, however, invite the question as to what are the
does not make this case on all fours with Abbott. The receipt of job
specific qualitative and/or quantitative standards of PNOC-EDC. With
description and the company's code of conduct in that case was just
respect to the first job objective listed above, for instance, one may
one of the attendant circumstances which we found equivalent to...
ask: "how will PNOC-EDC measure the performance of Buenviaje as to
being actually informed of the performance standards upon which a
whether... she has adequately set the overall marketing objectives
probationary employee should be evaluated. What was significant in
and directions of PNOC-EDC, in coordination with PNOC-EDC
that case was that both the offer sheet and the employment contract
Operations, through the Department Managers and Corporate Service
specifically stated that respondent was being employed on a
units
probationary... status. Thus, the intention of Abbott was to hire
Alcaraz as a probationary employee. This circumstance is not The same is true with the first duty: "how will PNOC-EDC measure the
obtaining in this case and the opposite, as we have already discussed, performance of
is true.
Buenviaje as to whether she has ensured that a survey of potential
Of equal significance, the job description attached to Buenviaje's markets and customers in relation to newly developed or soon-to-be-
appointment letter merely answers the question: "what duties and completed power projects are regularly initiated?
responsibilities does the position entail?", but fails to provide the
On the other hand, the appraisal form appraises the elements of
answer/s to the question: "how would the employer gauge the
performance, which are categorized into results-based factors,
performance of... the probationary employee?". The job description
individual effectiveness and co-worker effectiveness.[62] Pertinently, PNOC-EDC failed to observe these requirements because it operated
the results-based factors, which are broken down into... output on the wrong premise that Buenviaje was a probationary employee.
indicators of: 1.) quality, 2.) quantity, 3.) timeliness, 4.) cost But even if we were to assume that she was, she would still be
effectiveness, 5.) safety/housekeeping/environmental consciousness, illegally dismissed in light of PNOC-EDC's violation of the provisions of
and 6.) profit objectives, are rated according to expected outputs or the Labor
key result areas, performance standards, and actual...
Code in dismissing a probationary employee.
accomplishments. Clearly, the form specifies the performance
standards PNOC-EDC will use, which demonstrates that PNOC-EDC A probationary employee also enjoys security of tenure, although it is
expected a certain manner, level, or extent by which she should not on the same plane as that of a permanent employee.[66] This is
perform her job so because aside from just and authorized causes, a probationary
employee may also be dismissed due to failure to... qualify in
PNOC-EDC knew the job description and the performance appraisal
accordance with the standards of the employer made known to him
form are... not one and the same, having specifically used the latter
at the time of his engagement.[67] PNOC-EDC dismissed Buenviaje on
when it evaluated Buenviaje and not the job description attached to
this latter ground; that is, Buenviaje allegedly failed to meet the
the appointment letter.
standards set by the company. In dismissing... probationary
The fact, therefore, that PNOC-EDC used a performance appraisal employees on this ground, there is no need for a notice and hearing.
form with standards expected from Buenviaje further negates any...
The employer, however, must still observe due process of law in the
assumption that these standards were of basic knowledge and
form of: 1) informing the employee of the reasonable standards
common sense,[63] or that Buenviaje's position was self-descriptive
expected of him during his probationary... period at the time of his
such that there was no need to spell out the standards at the time of
engagement;[69] and 2) serving the employee with a written notice
her engagement.[64
within a reasonable time from the effective date of termination.
Buenviaje was illegally dismissed
By the very nature of a probationary employment, the employee
The foregoing discussion proves Buenviaje was hired as a permanent needs to... know from the very start that he will be under close
employee on February 1, 2004. As a permanent employee, she may observation and his performance of his assigned duties and functions
only be dismissed by PNOC-EDC after observing the following would be under continuous scrutiny by his superiors. It is in apprising
substantive and procedural requirements: him of the standards against which his performance shall be
continuously assessed... where due process lies.
The dismissal must be for a just or authorized cause;
As we have previously settled, PNOC-EDC failed to inform Buenviaje
The employer must furnish the employee with two (2) written notices
of the reasonable standards for her regularization at the time of her
before termination of employment can be legally effected. The first
engagement. The unfairness of this failure became apparent with the
notice states the particular acts or omissions for which dismissal is
results of Buenviaje's appraisals. In her first appraisal covering a...
sought while the second notice states the employer's decision to...
three-month period from February 1, 2004 to April 30, 2004,
dismiss the employee; and
Buenviaje received a satisfactory rating. It was in her second appraisal
The employee must be given an opportunity to be heard.[ covering a two-month period from May 1, 2004 to June 30, 2004
where she received an unsatisfactory rating that led to her dismissal.
There was no... proof, however, that per PNOC-EDC's standards, negligence or inefficiency. For termination of employees based on just
receiving an unsatisfactory rating of four (4) from a satisfactory rating causes, the employer must furnish the employee with two (2) written
of three (3) will result to failure to qualify for regularization. notices before... termination of employment can be effected: a first
written notice that informs the employee of the particular acts or
Neither would PNOC-EDC's reason for dismissing Buenviaje qualify as
omissions for which his or her dismissal is sought, and a second
a just cause. Under Article 297 of the Labor Code, an unsatisfactory
written notice which informs the employee of the employer's decision
rating can be a just cause for dismissal only if it amounts to gross and
to dismiss him
habitual neglect of duties.[73] Analogous to... this ground, an
unsatisfactory performance may also mean gross inefficiency. "Gross Although Buenviaje indeed received two (2) letters from PNOC-EDC...
inefficiency" is closely related to "gross neglect," for both involve regarding her termination, these letters fall short of the two (2)
specific acts of omission on the part of the employee resulting in notices required under the law. The first letter sent to Buenviaje
damage to the employer or to his business failed to apprise her of the particular acts or omissions on which her
dismissal was based. It was merely a bare statement that
Such inefficiency is understood to mean failure to attain work goals or
Buenviaje's... performance failed to meet PNOC-EDC's minimum
work quotas, either by failing to... complete the same within the
requirements
allotted reasonable period, or by producing unsatisfactory results.
This management prerogative of requiring standards may be availed Buenviaje is entitled to separation pay and attorney's fees
of so long as they are exercised in good faith for the advancement of
An employee who is unjustly dismissed from work shall be entitled to
the employer's interes
reinstatement without loss of seniority rights and other privileges and
The fact that an employee's performance is found to be poor or to his full backwages, inclusive of allowances, and to his other
unsatisfactory does not necessarily mean that the employee is grossly benefits or their monetary equivalent computed from the time his...
and habitually negligent of or inefficient in his duties.[76] Buenviaje's compensation was withheld from him up to the time of his actual
performance, poor as it might have been, did not... amount to gross reinstatement.[82] However, there are instances when reinstatement
and habitual neglect of duties or gross inefficiency. The markedly is no longer feasible, such as when the employer-employee
different results of several factors in the appraisals in a span of five (5) relationship has become strained. In these cases, separation pay
months prove this. may... be granted in lieu of reinstatemen
Gross negligence implies a want or absence of or failure to exercise We agree with the CA that the reinstatement of Buenviaje is no
slight care or diligence, or the entire absence of care. It evinces a longer viable given the irreconcilable differences and strained
thoughtless disregard of consequences without exerting any effort to relations between her and PNOC-EDC. In light of this, separation pay
avoid them.[79] As a just cause, it also has to... be habitual, which with full backwages, in lieu of Buenviaje's reinstatement, is
implies repeated failure to perform one's duties for a period of time, warranted.
depending upon the circumstances. A single or isolated act of
WHEREFORE, the petition in G.R. Nos. 183200-01 is DENIED while the
negligence, as was shown here, does not constitute a just cause for
petition in G.R. Nos. 183253 and 183257 is PARTIALLY GRANTED. The
the dismissal of the employee.[80]
October 31, 2007 Decision and June 3, 2008 Resolution of the CA in
PNOC-EDC would also be in violation of procedural due process if CA-G.R. S.P. Nos. 94359 and 94458 are
Buenviaje were dismissed on the purported ground of gross
AFFIRMED with the MODIFICATION that PNOC-EDC is ordered to pay
Amelyn Buenviaje moral damages in the amount of P30,000,
exemplary damages in the amount of P25,000, and attorney's fees
equivalent to ten percent (10%) of the total award of backwages.
HILARIO DASCO v. PHILTRANCO SERVICE ENTERPRISES CA... reversed and set aside the NLRC rulings and reinstated the LA's
INC/CENTURION SOLANO, GR No. 211141, 2016-06-29 decision.
Facts: Issues:
This case stemmed from a complaint[7] for regularization, NOT FIELD PERSONNEL = ENTITLED... whether the petitioners as bus
underpayment of wages, non-payment of service incentive leave (SIL) drivers and/or conductors are field personnel, and thus entitled to
pay, and attorney's fees, filed by the petitioners against Philtranco overtime pay and SIL pay
Service Enterprises Inc., (PSEI),... and its Manager,... Solano...
Ruling:
petitioners were employed by the respondents as bus drivers and/or
conductors with travel routes of Manila (Pasay) to Bicol, Visayas and The determination of whether bus drivers and/or conductors are
Mindanao, and vice versa. considered as field personnel was already threshed out
petitioners filed a case against the respondents alleging that... they If required to be at specific places at specific times, employees
cannot be considered as field personnel because their working hours including drivers cannot be said to be field personnel despite the fact
are controlled by the respondents from dispatching to end point and that they are performing work... away from the principal office of the
their travel time is monitored and measured by the... distance employee
because they are in the business of servicing passengers where time is
of the essence "field personnel" is not merely concerned with the location where the
employee regularly performs his duties but also with the fact that the
In response, the respondents asserted tha... the petitioners are not employee's performance is unsupervised by the employer. As...
entitled to overtime pay and SIL pay because they are field personnel discussed above, field personnel are those who regularly perform
whose time outside the company premises cannot be... determined their duties away from the principal place of business of the employer
with reasonable certainty since they ply provincial routes and are left and whose actual hours of work in the field cannot be determined
alone in the field unsupervised. with reasonable certainty.
LA NLRC properly concluded that the petitioners are not field personnel
but regular employees who perform tasks usually necessary and
LA rendered a Decision[11] in favor of the respondents... found that
desirable to the respondents' business. Evidently, the petitioners are
the petitioners are not entitled to holiday pay and SIL pay because
not field personnel as defined above and... the NLRC's finding in this
they are considered as field personnel.
regard is supported by the established facts of this case: (1) the
NLRC petitioners, as bus drivers and/or conductors, are directed to
transport their passengers at a specified time and place; (2) they are
NLRC held that the petitioners are not field personnel considering
not given the discretion to select and contract... with prospective
that they ply specific routes with fixed time schedules determined by
passengers; (3) their actual work hours could be determined with
the respondents; thus, they are entitled to minimum wage, SIL pay,
reasonable certainty, as well as their average trips per month; and (4)
and overtime benefits.
the respondents supervised their time and performance of duties.
CA
In order to monitor their drivers and/or conductors, as well as the
passengers and the bus itself, the bus companies put checkers, who
are assigned at tactical places along the travel routes that are plied by
their buses.
In addition, there are always dispatchers in each and every bus
terminal, who supervise and ensure prompt departure at specified
times and arrival at the estimated proper time. Obviously, these
drivers and/or conductors cannot be... considered as field personnel
because they are under the control and constant supervision of the
bus companies while in the performance of their work.